Married … Well Not Really – A Long Term Care Quagmire

Jane calls us to relate the same problem that many Americans today are coping with, trying to care for aging parents.  She calls because Dadâs health is rapidly deteriorating and she fears he will need nursing home care.  I ask about Momâs health.  Jane replies that she is healthy.  And here is the twist, where the story becomes more complicated.

 Jane tells me that Mom and Dad have been separated for years, never divorced, just living separate lives under separate roofs, with separate assets.  âDad was never easy to live withâ, she tells me, âbut Mom wasnât the type to file for divorce.  It wasnât acceptable.â  âSoâ, she asks me, âwe can spend down Dadâs assets and then qualify him for Medicaid, right?â

 âWellâ, I tell her, âit is a bit more complicated than thatâ.  Under Medicaid rules, because they are still married, all their assets are combined for purposes of calculating how much to spend down.  Medicaid rules do provide that if the applicant is separated from a spouse for at least one month then he will be treated as a single person and only his assets will count towards the asset spend down.  However, there is no definition of what constitutes a separation and you can be sure that the State will scrutinize it very closely.  Mom may still have to spend some of her assets for Dadâs care even though they have been living single lives for years.  âIs there anything we can do,â Jane asks, as I hear the desperation in her voice.

 Divorce is still an option, although it could be considerably more difficult if Dad doesnât have the mental capacity to understand the legal process and consent to a divorce settlement.  There is also the matter of the State, again, scrutinizing the divorce, especially if Mom has accumulated and wants to keep more than 50% of the combined assets.  You see, the State assumes the divorce was obtained for the purpose of qualifying for Medicaid.  If Mom keeps more than half of the assets Dad would probably be turned down for benefits.  There may also be other strategies that we have discussed for married couples that could be employed to preserve assets for Mom but, although they are married under the law, they are not really âtogetherâ.    So preserving Dadâs assets for Mom and vice versa is not the goal.

As Jane puts it, âMom and Dad have lived separate lives for many years.  Mom has struggled to accumulate her own assets and become self sufficient.  How can I tell her that she may lose some of her hard earned money?â.  I didnât have an answer for Jane.  I do, however, have one for others who may one day be in that situation.  If any of Janeâs story sounds familiar to you, donât wait till long term care is staring you in the face.  Plan ahead and solve the problem before it reaches crisis proportions or youâll be faced with the dilemma that Jane and her family face.