Medicaid Rules for Community Spouses

In 2026, the community spouse is allowed to keep their own income and, if necessary, receive a portion of the nursing home spouse鈥檚 income, up to approximately $4,066.50 per month. This is meant to ensure that basic living expenses such as housing, utilities, food, and other day-to-day costs can continue to be paid. For many families, this is an important protection that allows the spouse at home to maintain stability.

There are also important protections when it comes to assets. While the spouse applying for Medicaid is limited to maintain $33,038 in their own name, the spouse at home can retain approximately $74,820, or up to one-half of the couple鈥檚 total assets, with a maximum of $162,660. The applying spouse can also have retirement accounts as an additional asset. Beyond that, the primary residence is typically protected as long as the spouse, or minor or disabled child continues to live there. This often comes as a relief to families who are concerned about losing their home.

No Penalty for Asset Transfers Between Spouses

Another important point is that assets can be transferred to a spouse without triggering a Medicaid look-back penalty. This is different from transfers to other individuals, which can result in a period of ineligibility. Because transfers between spouses are allowed, there are often opportunities to protect assets even when planning has not been done in advance.

Spousal Refusal

New York also permits a strategy known as 鈥渟pousal refusal.鈥� While the name can sound concerning, it is simply a way for the spouse at home to retain assets and income in their own name while the spouse in need of care applies for Medicaid. So long as that document is timely filed with the application, the Medicaid agency will determine eligibility for the institutionalized spouse without considering the assets or income of the community spouse.

Planning Ahead is Key, But Couples Still Have Options

It is also important to understand the cost of care. Nursing homes in the New York area can cost approximately $15,000 per month, and in some cases even more, depending on the facility. Without proper planning, these costs can quickly deplete a family鈥檚 savings.

Even in a crisis, families often have more options than they realize. Planning ahead is always best, but there are often still steps that can be taken when care is needed.

By Britt Burner, Esq. and Alma Muharemovic聽 Esq.

Britt Burner, Esq. is the Managing Partner at 明星黑料, P.C. focusing her practice areas on Estate Planning and Elder Law. Alma Muharemovic, Esq. is an associate attorney at 明星黑料, P.C. practice on Estate Planning. 明星黑料, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.

Who Will Qualify for Medical Aid in Dying in New York?

The statute is carefully limited and highly regulated. To qualify, an individual must be at least eighteen years old, be a New York resident, and have a medically confirmed terminal illness that is incurable and irreversible, with a prognosis of six months or less to live. The individual must also be mentally capable of making informed medical decisions and physically able to self-administer the medication. The law does not apply to individuals who are elderly, disabled, or chronically ill unless they meet the strict definition of terminal illness.

What is the Process of Medical Aid in Dying?

The process for requesting medical aid in dying includes multiple safeguards. A patient must make two oral requests and one written request. At least one oral request must be audio or video recorded to document that the decision is voluntary and free from pressure. The written request must be witnessed by two adults, at least one of whom is not related to the patient and does not stand to benefit financially from the patient鈥檚 death. Two physicians must independently confirm the diagnosis, prognosis, and the patient鈥檚 mental capacity. In addition, the law requires a mental health evaluation by a psychiatrist or psychologist to confirm that the patient is competent to make this decision.

How Long Does the Process Take?

Timing rules are also built into the law. Under normal circumstances, there is a fifteen-day waiting period between the first and second oral requests. Once the medication is prescribed, there is an additional five-day waiting period before it can be dispensed by a pharmacy. These timeframes may be shortened in cases of imminent death, where the attending physician determines that the patient is likely to die or lose the ability to self-administer the medication before the waiting periods would otherwise expire.

The medication must be self-administered by the patient. This means the patient must perform the final physical act, such as swallowing the medication or pressing the plunger of a feeding tube. While others may assist with preparation, no one else may administer the medication on the patient鈥檚 behalf.

What Else Should Families Know About Medical Aid in Dying?

Participation in Medical Aid in Dying is voluntary for healthcare providers. Physicians, hospitals, hospice providers, and pharmacies may choose whether to participate. The law also includes important protections for patients. A death under the statute is not legally considered suicide or homicide, and life insurance and health insurance benefits cannot be denied or altered solely because a person used medical aid in dying. The underlying terminal illness will be listed as the cause of death on the death certificate.

How the Medical Aid in Dying Act Affects Estate Planning

From an estate planning and elder law perspective, the new law also highlights important limitations on advance directives. A health care proxy cannot request medical aid in dying on behalf of a patient. The request must come directly from the individual, and an agent under a health care proxy may not serve as a witness to the written or recorded requests. These restrictions are designed to prevent conflicts of interest and protect patient autonomy.

Medical Aid in Dying represents a significant shift in how New York approaches end-of-life decision-making. As the state moves toward implementation, individuals and families facing serious illness should take time to understand how this new law works and how it fits within their broader medical, legal, and estate planning goals.

By Britt Burner, Esq. and Alma Muharemovic聽 Esq.

Britt Burner, Esq. is the Managing Partner at 明星黑料, P.C. focusing her practice areas on Estate Planning and Elder Law. Alma Muharemovic, Esq. is an associate attorney at 明星黑料, P.C. practice on Estate Planning. 明星黑料, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.

What are the Medicare Advantage Plans in New York?

The Medicare Advantage plans available depends on the county in which an individual resides. In 2025, Nassau County and New York City residents will have four (4) fewer Medicare Advantage Plans to choose from than they did in 2024. Queens and Brooklyn residents will have eight (8) fewer plans to choose from. And unlike many other counties, Suffolk residents will have the same amount of Medicare Advantage Plans to choose from in 2025 as they did in 2024.

What Happens if Your Medicare Advantage Plan is Cancelled in 2025?

A small number of participants whose plan has been terminated for 2025 will not be automatically assigned to a new plan. People in this group will be able to enroll in another Medicare Advantage plan, if one is available, or choose Original Medicare. If they choose Original Medicare, they will qualify for a special enrollment period for Medigap with guaranteed issue rights, meaning they can switch to Original Medicare and will not be denied a Medigap policy due to a preexisting health condition.

In other cases, a new plan will be assigned under the same insurance provider automatically if the contract includes another plan of the same type (i.e., HMO or PPO) in the same county. Others will have to make an active choice to enroll in another Medicare Advantage plan.

What is Medigap?

Those that participate in Original Medicare often purchase a Medicare Supplemental or Medigap insurance policy. The Medigap helps to fill in the 鈥済aps鈥� in Original Medicare. Medigap policies may cover co-insurance, co-payments, and deductibles, as well as extra benefits such as foreign travel emergency coverage. There are twelve (12) Medigap insurance plans to choose from in New York. Normally, prices for this kind of policy vary based on your age, sex, and health status. However, if someone鈥檚 Medicare Advantage Plan is cancelled for 2025, one may enroll in a Medigap insurance policy regardless of preexisting health conditions that might have previously disqualified them from coverage.

When is Open Enrollment for Medicare 2025?

Finding affordable healthcare coverage is often overwhelming, but vital to living a healthy, full life. Regardless of your circumstances, it is never too early to consider how changes in New York鈥檚 Medicare offerings will affect you. Whether you participate in Original Medicare or a Medicare Advantage plan, open enrollment is now! Open enrollment for 2025 insurance coverage is from October 15 to December 7. Take this opportunity to review your plan to ensure you have the coverage you need for the new year!

Authors: Britt Burner, Esq. is a Partner at 明星黑料, P.C. focusing her practice areas on Estate Planning and Elder Law. Erin Cullen is a graduate of the Maurice A. Dean School of Law at Hofstra University.

明星黑料, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.

What does Medicare Part A cover?

Medicare Part A, also known as hospital insurance, helps cover inpatient care in hospitals and skilled nursing facilities including rehabilitation facilities. To be eligible for Medicare coverage for skilled nursing care, the care must be medically necessary and not custodial care. Medicare does not cover custodial care, which is help with activities of daily living, such as dressing, eating, or bathing.

When Does Medicare Pay for a Skilled Nursing Facility?

An individual is usually qualified to receive SNF coverage through Medicare Part A if he or she has been:

1. admitted to the facility is within 30 days of the date of hospital discharge;
2. the prior hospitalization was for at least 3 consecutive days, excluding the day of discharge;
3. the resident requires daily skilled nursing or rehabilitation services that can only be provided in a SNF;
4. the resident is admitted to the facility to receive treatment for the same condition(s) for which he was treated in the hospital;
5. a medical professional certifies that the resident requires daily skilled nursing care.

Can you lose Medicare coverage for a skilled nursing facility?

Coverage for rehabilitation under Medicare Part A is intended to be short-term. As mentioned, the first 20 days in the rehab facility are covered in full by Medicare. After admittance to a facility, the patient is evaluated periodically. Coverage can be terminated before the 100 days is up if an individual will not participate in rehabilitation treatments, or it鈥檚 determined the treatment will not help the person preserve or improve their skill level.

If a patient does not qualify for Medicare but their family does not have the resources at home to care for them, Medicare will not provide payment for however long it takes to make a plan or apply for Medicaid. Once Medicare terminates coverage, the patient needs to return to his or her home or start privately paying for care which can cost hundreds of dollars a day.

Does Medicare 100 Days Reset?

A patient can qualify for a new 100-day benefit period only after being out of a hospital or skilled nursing facility for 60 days in a row. It is a myth that Medicare pays for long term care in a nursing home. The only government program that pays for long term care in a skilled nursing facility is the Chronic Medicaid program which has its own rules for eligibility. However, community Medicaid is an alternative to consider for those who need daily assistance but have run out of their Medicare days or cannot afford or qualify for Chronic Medicaid.

Navigating the various payment sources for rehabilitation and beyond can be complicated. Be sure to understand the coverage you have and seek the guidance of competent elder law professionals to advise on additional coverage.

What Are the Different Types of Advance Directives?

The health care proxy is a document that states who will make medical decisions for you if you lose your mental capacity and are unable to make these decisions for yourself. This may include a temporary incapacity such as when a person is under anesthesia, or a long-term incapacity that is a result of dementia or some other cognitive impairment. The health care proxy names one agent to act on your behalf and you can name a successor if your initial agent becomes unavailable to act. In other states, this document is sometimes referred to as a health care power of attorney.

A living will is a document that gives direction as to the type of treatments that you would or would not want if you were to be in an irreversible state with no reasonable expectation of recovery. For those that have also signed a health care proxy, the living will can be used as a guide to the named health care agent in making decisions regarding treatment and end of life. The living will can also be used in the absence of a health care proxy as evidence of your wishes if you are unable to voice your opinion.

Beyond the long-standing advance directives, there is also a form called the Measure of Life Sustaining Treatment (MOLST) form. Unlike the others, this requires consultation with your physician and is actually signed by you and your doctor. The MOLST form is intended to be used as a patient moves between different care settings to make sure the patient鈥檚 wishes regarding treatment options are known by the care team. A MOLST form is to be used for those with advanced illness or who are thought to be in the last 1-2 years of life.

The decisions regarding administration or termination of certain types of medical treatments are some of the most important ones to be made in a person鈥檚 lifetime. Completing advance directive documents such as the ones discussed above are the first step in ensuring that your wishes will be followed if and when you are unable to participate in those conversations yourself.

Once the documents are completed appropriately, the individual should have conversations with the appointed agents, so they are equipped with the information they may need should they have to make these very important decisions.

Author: Britt Burner, Esq. is a Partner at 明星黑料, P.C. focusing her practice areas on Estate Planning and Elder Law.聽

Traditional Execution Method

Traditionally, under New York鈥檚 Public Health Law, a competent adult could appoint a health care agent through a health care proxy. This process required the document to be signed and dated by the individual in the direct presence of two adult witnesses, who also needed to sign the document.

A Significant Legal Update

However, the landscape changed with the recent amendment to . This amendment allows for the remote witnessing of health care proxies using audio-visual technology platforms such as Zoom or FaceTime. To ensure the legality and validity of this process, several conditions must be met:

1. Identification Requirement: The principal must display a valid photo ID during the audio-video conference if they are not personally known to the remote witness.
2. Direct Interaction: The audio-video technology must facilitate direct interaction between the principal and the remote witness.
3. Document Transmission: Within 24 hours of signing, the health care proxy must be sent to the remote witness via facsimile or electronic means.
4. Witness’s Signature: After receiving the document, the remote witness must sign the transmitted copy and return it to the principal.

Advantages of Remote Witnessing

The ability to remotely witness the signing of health care proxies is a significant advancement, offering practical solutions in various scenarios. It’s particularly useful during times when physical distancing is necessary, such as in a pandemic, or for individuals with mobility challenges. Additionally, the flexibility of remote witnessing is invaluable in urgent situations, where waiting for physical presence of witnesses may not be feasible.

The Role of Elder Law Attorneys

Given the legal intricacies involved in drafting and executing a health care proxy, consulting with an experienced elder law attorney is highly recommended. An elder law attorney can not only prepare a health care proxy tailored to your needs, but also ensure that it integrates seamlessly with your broader estate plan, including other essential documents like a power of attorney and living will.

New York State’s adoption of remote witnessing for health care proxies represents an embrace of technology to enhance legal processes, ensuring that residents can execute important health care decisions safely and efficiently. As legal professionals, we are here to guide you through these innovations, ensuring your peace of mind and the protection of your healthcare rights. If you have any questions about advance directives such as a health care proxy and the correct manner of executing these documents, set up a consultation with one of our attorneys today.

Answer: There are many types of irrevocable trusts, but by far the most common is the Medicaid Asset Protection Trust. The main benefit of the trust is protecting assets for purposes of qualifying for Medicaid long-term care. The cost of homecare or nursing home care is not covered by the everyday health insurance. Should one need long-term care, they must either pay privately, have long-term care insurance, or qualify for Medicaid. Medicare does not pay for long-term care.

Qualifying for Medicaid requires meeting Medicaid鈥檚 asset and income limits. By transferring assets to an irrevocable trust, one can reduce their available assets for Medicaid eligibility. Assets held in the trust for five years are fully protected under the five-year look-back period for nursing home Medicaid. There is currently no look-back period in New York for homecare Medicaid. Therefore, assets transferred to the trust are unavailable for homecare Medicaid as of the date of the transfer.

The Medicaid Asset Protection Trust allows the Grantor (creator of the trust) to receive income from the trust (rental income, interest, dividends, etc.). However, under no circumstances can the Grantor, or the Grantor鈥檚 spouse, have access to the trust principal. The Grantor or their spouse cannot be Trustee. The Grantor still maintains an impressive level of control. For example, the Grantor retains the right to reside in any home held in the trust, remove or replace a Trustee, and change the beneficiaries. If a home held in the trust is sold, the proceeds from the sale can be used to purchase a substitute property for the Grantor.

Another advantage of an irrevocable trust is that assets placed in the trust avoid probate. Probate is the process in which a Last Will and Testament is filed in Surrogate鈥檚 Court in the county where the decedent resided at the time of death. The named Executor will have to file the original Will and death certificate, along with a probate petition with the court. The decedent鈥檚 next-of-kin will have to be notified and provided the opportunity to contest the validity of the Will. Only after the court issues a decree granting probate and issues Letters Testamentary can the Executor then marshal the decedent鈥檚 assets and distribute the property according to the terms of the Will. The probate process can be significantly time-consuming and costly. Assets held in your sole name without a listed beneficiary must pass through the probate process. However, assets held in a trust will pass seamlessly upon the Grantor鈥檚 death without court intervention.

Because the trust is irrevocable, there are limits on the ways it can be updated as time passes. As mentioned, this type of irrevocable trust can give the Grantor the power to remove/replace a trustee and change the ultimate beneficiaries of the trust. Most other types of irrevocable trusts do not have this flexibility. It is important to meet with an estate planning attorney to review your current trust and determine whether it meets your needs and goals. An elder law attorney can usually work with you to make changes even when a trust is irrevocable.

Legal Options for Seeking Justice

There are several legal options available for seeking justice for your father鈥檚 COVID-19 death in a nursing home. These may include:

1. Filing a wrongful death lawsuit: If you believe that the nursing home was negligent or acted recklessly in its care of your father, you may be able to file a wrongful death lawsuit. A wrongful death lawsuit seeks to hold the nursing home responsible for the damages caused by your father鈥檚 death, including medical expenses, funeral expenses, and other losses.
2. Filing a complaint with state regulatory agencies: You may also be able to file a complaint with state regulatory agencies that oversee nursing homes. These agencies may investigate your complaint and take action against the nursing home if they find evidence of wrongdoing.
3. Joining a class action lawsuit: If there are other families who have experienced similar losses at the same nursing home, you may be able to join a class action lawsuit. Class action lawsuits allow multiple plaintiffs to pursue legal action against the nursing home collectively, which can be more efficient and cost-effective than filing individual lawsuits.

In conclusion, if you鈥檝e lost a loved one to COVID-19 in a nursing home, you may be wondering if there is any recourse you can take against the nursing home. Understanding nursing home liability and your legal options for seeking justice can help you take action and hold the nursing home responsible for the damages caused by your father鈥檚 death.

How Does New York鈥檚 New Digital Notary Work?

During the pandemic, Governor Cuomo signed an Emergency Order allowing for temporary remote notarization that expired April 18, 2020. Electronic notarization has now been made permanent. The new law allows for remote notary services to be offered, but with more oversight than the temporary order. To provide remote notary services, every notary must聽聽and use software that complies with DOS regulations.

It鈥檚 important to note that a notary may only perform electronic notarizations if they are physically located within the state of New York. However, the signer can be located anywhere in the world, so long as there is a connection with the United States. The notary must identify the remote signer using one of three methods: personal knowledge of the signer, official identification via communication technology, or through an oath or affirmation of a witness who is known to the signer. A notary can charge $25.00 for each electronic notarization rather than the $2 limit a traditional in-person notary can charge.

In addition to this, the notary must be able to see and interact with the remote signer in real-time through audio-visual communication technology. The notary must also retain the audio-visual recording of the electronic notarization for at least 10 years. The communication technology platform must comply with Department of State鈥檚 regulations 鈥� Facetime and Zoom are聽苍辞迟听compliant.

Stricter Requirements for All Notaries

Another significant change brought about by the new legislation is the implementation of new record-keeping requirements for all notaries, including those providing traditional, in-person services. All notaries must now keep a journal of all notarial acts for at least 10 years and be able to produce it to the Secretary of State and other relevant parties as necessary. For each notarial act, the notary must record the date, time, and type of act performed, the name and address of the signer, the number and type of notarial services provided, the type of credential used to identify the signer (including any witnesses), and the verification procedures used for any personal appearances before the notary public.

What Documents Can Be Remotely Notarized?

It鈥檚 worth noting that, unlike the coronavirus executive order, remote witnessing is not allowed under the new legislation. Legal documents may be notarized remotely under the new law, but others will still require witnesses. The new remote notarization law allows for both electronic signature and 鈥渨et鈥� signatures. But when done remotely, there is no exchange of a paper document as the notarial process is an electronically created and stored document. The notary jurat must state: 鈥渢his electronic notarial act involved a remote online appearance involving the use of communication technology.鈥� Overall, these new changes to the notarization process in New York state are designed to provide greater flexibility and security for all notaries and signers. Just as legal professionals welcomed e-filing, we welcome all notaries to the 21^st听肠别苍迟耻谤测!

Qualifying for Medicare Part A Coverage

Medicare Part A covers the rehabilitation stay so long as certain prerequisites are met:

(1) the admission to the facility is within 30 days of the date of the hospital discharge;

(2) the prior hospitalization must be for at least three consecutive days, excluding the day of discharge;

(3) the doctor concludes the patient needs daily skilled nursing care or rehabilitative services; and

(4) the medical condition relates to the condition treated by the hospital during the qualifying 3-day inpatient hospital stay.

Qualifying Hospital Stay

The Medicare program is difficult to navigate because of the nuances of coverage.聽 It is important to inquire from hospital staff whether the patient was 鈥渁dmitted鈥� to the hospital or was merely under 鈥渙bservation.鈥� Observation status days do not count towards the聽. It is also necessary that the patient require either skilled nursing or rehabilitative care on a daily basis, and that the care is only available in a skilled nursing facility.

Days 21 鈥� 100 鈥� Skilled vs Custodial Care

Coverage for rehabilitation under Medicare Part A is intended to be short-term. The goal is improvement of acute conditions through rehabilitation and skilled nursing care. As mentioned, the first 20 days in the rehabilitation facility are covered in full by Medicare. Some Medigap/Supplemental co-insurance policies will cover all or part of the $194.50 daily co-pay for days 21-100. But patients rarely qualify for 100 days of rehabilitation. After admittance to a facility, the patient is evaluated periodically. Once the facility determines that the patient no longer needs skilled care, coverage under the Medicare program ends. The most important piece to understand is the difference between skilled care and custodial care. Medicare does not cover custodial care.

Skilled nursing care includes nursing and therapy care that can only be performed by registered nurses, licensed practical and vocational nurses, 聽physical and occupational therapists, speech-language pathologists, and audiologists.聽 Custodial care is help with activities of daily living, such as getting in and out of bed, eating, bathing, dressing, toileting and grooming. Custodial care is traditionally provided in a nursing home.

There are many circumstances where the patient does not fall into the category of needing rehabilitative or skilled care, but the family cannot bring their loved one home safely. Medicare does not pay for time to set up a discharge plan. Once Medicare terminates coverage, the patient needs to return to the community or start privately paying for care.

A patient can qualify for a new 100 day benefit period only after being out of a hospital or skilled nursing facility for 60 days in a row. It is a聽聽that Medicare pays for long term care in a nursing home. The only government program that pays for long term care in a skilled nursing facility is the聽Chronic Medicaid program. It may be necessary to speak with an elder law attorney in your area to get information about your specific case.