New estate recovery law helps families of older Georgians

Families who have an elderly loved one living out their remaining days in a nursing home could get a little financial reprieve when government bill collectors start calling.

A new law recently signed by Gov. Nathan Deal would protect the first $25,000 of a loved one’s estate from collectors regardless of how much the estate is worth.

When seniors go into a nursing home to live out their days, Medicaid seeks to recover the long-term care costs after they die. Medicaid Estate Recovery can go after the entire estate — including the home, any jointly held assets, or monies set aside in a living trust.

While the government won’t bother to take the estate if it’s worth less than $25,000, anything valued over that amount is subject to full recovery, and a lien will be placed on the property.

The planned amendment would allow families to keep $25,000 of the property’s value, if the measure receives approval by the U.S. Department of Health and Human Services Centers for Medicaid and Medicare Services.

"This makes it more fair," said Hilary Leland, an attorney with Atlanta Legal Aid who specializes in issues involving seniors. "The way it was, you could have $25,000 and get to keep it, but have $26,000 and not be able to keep anything."

A Toccoa family learned this firsthand when they got a Medicaid bill for $79,323 following the death of their loved one.

Tom and Wanda Hardman experienced what a lot of families go through with elderly parents. Tom’s mother had dementia and lived the last two years of her life in a nursing home. Her only asset was her Stephens County house, worth about $83,000.

When she passed away in 2016, Georgia Medicaid placed a lien on her house a week after her death and sent the family a bill charging the estate for the long-term care she received in the nursing home. Wanda Hardman said she didn’t know how the process worked, but through her own research found out that the state wouldn’t try to recover any money if her mother-in-law’s home had been worth $25,000 or less.

“We knew we had to pay the money back for the care she received during the 21 months she was in the nursing home, but what wasn’t fair was if her home was worth $25,000 or less we wouldn’t have to pay anything. All she had was the house. She didn’t have life insurance or anything,” Hardman said.

Hardman said she thought the law was discriminatory, so she contacted local state Sen. John Wilkinson, R-Toccoa. He agreed to sponsor legislation that would have the first $25,000 of any estate deducted before collecting the rest. The legislation was passed overwhelmingly.

“I told Sen. Wilkinson it won’t help us, but maybe it will help someone in the future,” Hardman said.

Atlanta Legal Aid provides free legal counsel for seniors in need, and Leland said they do receive calls about Estate Recovery through the hotline number at 404-657-9915. Seniors can call with any legal questions they have, or to get referrals for area attorneys who specialize in eldercare law.

“We’re dealing with people who are impoverished, and a lot of the time the only asset they have is their house. They ask if there’s any way they can prevent their house from going to estate recovery, and we try to help them see if there is a hardship situation,” Leland said.

There are some exceptions and reasons the state will put off estate recovery.

They won’t kick out a surviving spouse, children under age 21, or adult children who are disabled. Estate recovery will be delayed in such instances.

Recovery also will be delayed if any siblings or children are still living in the home who had been a caregiver for at least two years to the deceased.

Families can apply for a hardship to have the recovery waived if the property is a small farm that produces no more than $25,000 of gross annual income, or if recovering assets would result in the heirs becoming eligible for Medicaid themselves.

However, hardships aren’t considered if it’s just an inconvenience for the family or restricts their lifestyle. And even when a hardship is granted, the state can defer recovery until the dependents who are exempt have passed away.

During the last fiscal year, the state collected more than $5.2 million in estate recoveries. The Georgia Department of Community Health estimates there will be a 15 percent decrease in collection revenues if the state plan is amended.

Credit: Richard Fowlkes / AJC 1999 FILE PHOTO

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• Applies to any Medicaid recipient who at the time of their death was a resident of a long-term care facility, or those who are 55 or older who received home or community-based services.

• Expenses incurred by Medicaid for any service provided in a long-term care facility or in the home, when provided as an alternative to institutionalization, will be subject to estate recovery. These services include nursing facility services, personal care services, home and community-based services, hospital services and prescription drug services.

• The estate includes all real and personal property under the probate code.

• Recovery will be delayed if the spouse is still living, or if there is a child under age 21 or a disabled child of any age still living.

• A lien may be placed on the home, but recovery will be delayed if a sibling or child was living in the home as a caregiver for the recipient for an extended period of time, one or two years.

• Heirs may seek a hardship waiver from estate recovery if recovery of assets will show, through clear and convincing evidence, that such action subjects them to undue hardship.

For more information, contact Georgia’s Medicaid Estate Recovery Office at 770-916-0328.