By Daneen Cline
In June 2005, then Governor Taft signed House Bill 66 which resulted in the most sweeping changes the Ohio Estate Recovery program has undergone in the program’s history.
What is the Estate Recovery program and who does it affect? It is a program that is designed to recoup monies spent by the State of Ohio for a medicaid recipient’s care from their estate. All Medicaid recipients over the age of 55 are subject to the estate recovery process.
Before the passage of House Bill 66, estate recovery was limited to only assets that passed through the probate court. Avoiding probate effectively avoided estate recovery.
After the passage of House Bill 66, all assets of the recipient were subject to estate recovery, including accounts that passed to beneficiaries under a Payable on Death, Transfer on Death or a survivorship arrangement, property passing under a Transfer on Death or Survivorship deed, property passing under a trust agreement, as well as any Life Estate interest the recipient had in any property.
House Bill 66 also allowed the State of Ohio to place liens on the real estate of medicaid recipients, both during their life and after their death. This is the most unsettling change because the State is not required to notify the property owners they are placing the lien on the property.
In our practice, we have had many cases where the spouse of a Medicaid recipient has placed a property on the market with the intention of downsizing, only to find that the State of Ohio has improperly placed a lien on the property. The statute clearly states that estate recovery can not occur if the Medicaid recipient still has a living spouse. This does not stop them from placing the liens however and the spouse is left with only two options: either take the property off the market and be forced to stay in a home that they may be both physically and financially unable to maintain, or to hire an attorney to contact the Attorney General and have the lien removed.
The important thing to remember if you find one of these liens on your property, is that you still have options. As stated earlier, some of these liens are improper and can be removed with the assistance of an attorney. Others have been properly filed and are valid liens, they can however be negotiated down with the assistance of an attorney.
The best way to avoid a Medicaid lien on your property is to do some pre-planning to protect it. A qualified Elder Law Attorney can assist you with special trusts that will protect your property in the event you end up in a long term care situation and need to apply for Medicaid assistance.
