The Medicaid Situation

The cost of nursing care is extraordinary and many people rely on the idea that Medicaid will pay for their care or the care of their family member.    People call my office on a regular basis with questions about medicaid.  It is not uncommon that they are calling for an elderly parent or relative who needs to go to a nursing home, and the caller has been given a medicaid application and asked to fill it out.  That application asks for a huge amount of the personal and financial details and frequently people don’t know what to put on the form.

Its important to remember that Medicaid is considered a “welfare” program and that there are financial eligibility requirements.  The threshold to qualify for Medicaid is low, so even a people  of relatively modest means can be denied medicaid and expected to pay for their own nursing care for some time before Medicaid will kick in.  A number of variables can affect a person’s medicaid eligibility.

Is the person in need of care married?
Does that person own a home?
If the person has a spouse, where does the spouse live?
What money do they have on hand?
Do they have life insurance?
Do they collect a pension?
Does the person collect social security?  How much?

There are a number of other variables, but you get the idea.

There are some common misconceptions about Medicaid  too – number one among them is that if you own a house, and apply for Medicaid, then Medicaid will take your house.  That’s not really accurate.  What does happen however, is an applicant who owns real estate is considered to be above Medicaid’s financial eligibility threshold and is directed to pay for his or her own care.  The person in need of care and his or her family is faced with making the decision to sell the house to get money to pay the nursing home bill, or finding some other way to drum up the money to pay the bill.

If you have a spouse, and the spouse resides in your house, than there can be an exception to this rule, but the law is very specific.  Girlfriends, kids, your dog – none of them count.

The law is complex but ultimately it allows attorneys to make long range estate and medicaid plans to help people succeed in their medicaid applications and prevent the need to liquidate their assets on the fly as they are in need of care. These plans need to be put in place at least five years in advance, and if real estate is involved, at least ten years in advance .

What this means is if you or a family member is close to retirement, its time to sit down and talk about long range planning.  Because “saving the family house” has to be done ten years before you need Medicaid, if you’re not thinking about it by the time your 60, there’s a risk that by the time we do talk about it it will simply be too late.

Give me a call at the office at 518-477-5408, or on my cell at 518-595-9529.  I’m happy to talk to you about planning for medicaid and will help you make a plan that prevents you and your family from scrambling for cash when the time comes.




The right to remain silent…

May 25, 2010

You have a right to remain silent.  If you give up this right, anything you say can and will be used against you in a court of law.  You also have a right to consult with an attorney and have an attorney present during questioning.  If you cannot afford an attorney the court can appoint one.

– Arizona v. Miranda (1966)

The instructions above are familiar in American society today.  The proliferation of shows like  “Cops” and “Law and Order” have made Miranda rights common knowledge.  However, all to frequently, individuals accused of a crime make the decision to waive their Miranda rights and make a statement during police interrogation that can later hurt them as they are prosecuted.  While people hear about being “Mirandized” few actually take the time to think about what it means and how it affects their rights.   Lets take a look at the basic concept of Miranda, and break it down so you can quickly wrap your head around it in the event you are ever read your rights.

First, keep in mind that Miranda is a constitutional rule of procedure, not a right in and of itself.  That means you have various  constitutional rights (the right to remain silent and the right to an attorney), but Miranda in itself isn’t one of those.  Instead, its a rule the US Supreme Court has created, instructing the police to inform you of your constitutional  rights before they question you.

But, its not exactly that simple.  Miranda only covers “custodial interrogation,” meaning that the police must actually have you in a position where you’re not free to leave.  This isn’t necessarily a jail cell, but if you’re just walking down the street and announce a confession within ear shot of a cop, Miranda is irrelevant.  Similarly, if the cop is asking you questions, but you are free to leave and you understand that among your options is to not answer the cop’s questions and leave at any time, again, Miranda is irrelevant.

If you’re in custody, a cop has to read you your rights before he can ask you questions.  If he doesn’t do this, anything thing you say in response to these questions can be suppressed in court.  In other words, if they don’t tell you that “anything you say can and will be used against you in a court of law,” they can’t later go and use what you said against you.  Makes sense, right?

So, what do you do if you are in custody, and you’ve been Mirandized, and now there’s cops asking questions.  Well, if you’re not 100% innocent, your best bet is probably to say you want a lawyer present then keep your mouth closed until one shows up.  If you are literally 100% innocent and have no idea why you’re in police custody, then, and only then do you maybe try to explain that.  The rest of the time, keep your mouth shut.

If you have questions about Miranda or anything related to police interrogation, give me a call at 518.477.5408, or email and I can answer your questions.

The Law Office of Eric K. Schillinger

Quality Affordable Legal Services

attorney, lawyer, albany, new york, capital district, troy, rensselaer, Schenectady, affordable, cheap, traffic ticket, speeding ticket, criminal defense, divorce, real estate closing, estate planning, wills, probate, tax assessment, landlord tenant, contracts, personal injury, bicycle, dmv, dwi, driving while intoxicated, dwai, drugs, felony, misdemeanor, violation, disorderly conduct, marijuana, upm, possession