Can The Nursing Home Take My Home?

Can The Nursing Home Take My Home?

As an Elder Law Attorney, I have been asked the following question on several occasions: “Can the Nursing Home Take My Home?” While the simple answer is “No,” it is also misleading. Elder Law is a complex practice, and simple answers can sometimes create a false sense of security. What follows is a more complete answer to the question posed above, in the hope that the reader may gain a more compete understanding of the issues involved in Florida Homestead property when a person is admitted to a skilled nursing facility.

Homestead property in Florida is protected from creditors by the Florida Constitution. It is also an exempt asset when applying for Medicaid to pay for nursing home care. There is no limit to the value of Homestead real property, if there is a spouse or disabled child living in the home. If the Medicaid applicant is single, Homestead property is exempt up to the equity value of $603,000.00 in 2021. This figure will be raised by the government over time. Homestead property can be a single family structure, mobile home, condominium or co-op. A person can only have one Homestead. To be an exempt asset for Medicaid qualification, Homestead property must be located in the State of Florida or in one of 20 states which have a compact (treaty) with the State of Florida.

When applying for Medicaid, the applicant, or his or her representative, must declare an “intent to return home,” at some time in the future, so that Homestead property will be an exempt asset. Although the Department of Children and Families can be lax on requiring this statement, it is the best practice to declare this intention in writing.

The real problem arises when the applicant’s family can no longer afford to pay the taxes, insurance and sometimes mortgage on the Homestead property. While Homestead property is exempt while it is vacant, it loses its exempt status as Homestead property if it is sold or rented. When either of these events occur, further planning on an emergency basis must be initiated to solve this problem.

For example, if the family of a nursing home resident wants to rent the Homestead real property, a special type of deed, known as a ‘Ladybird Deed,” needs to be drafted to protect the property from Medicaid Recovery when the applicant dies. In addition, the Homestead real property must be rented at fair rental value, and all expenses of the property such as taxes, insurance, mortgage payments and management must be proved.

If the family wants to sell the Homestead real property, the proceeds must be immediately invested in non-countable resources.

These decisions regarding Florida Homestead real property require the assistance of an Elder Law Attorney skilled in Homestead real property, taxes, estate and Medicaid planning . Typically, a board certified Elder Law Attorney can resolve these complex planning issues.

If you have any questions concerning Medicaid, call our Miami office for a free telephone consultation: (305) 274-0955.

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