As an attorney practicing in elder law one of the most common questions I get is this: If I or my spouse need nursing home care, will the nursing home take our house? Or, similarly, if I or my spouse need assisted living care or memory care, will the county or state take our house? This is understandably a scary thought. Everyone’s home feels special and sacred, full of memories, and the result of a lifetime of working and saving to make your home just right or to finally get the mortgage paid in full.
So, will they take your home if you need long term care? The simple answer is: No. They can’t “take” your home. But could your home be subjected to a lien in the future? Yes, it could.
To begin with, no skilled nursing facility, assisted living facility, memory care facility, or other long-term care provider has the power to “take” your home or put a lien on it. Only the government has the power to do that. When you or your spouse needs care, you pay the care provider until you are able to qualify for Medical Assistance, and then Medical Assistance pays the care provider on your behalf. Medical Assistance is a state-run program administered at the county level. The county keeps a tab on how much money is expended by them on your behalf for Medical Assistance benefits. Ultimately, it is the county that has the power to attach a lien to your home to collect the value of the benefits paid on your behalf or on behalf of your spouse.
When you apply for Medical Assistance, the house you or your spouse lives in is treated as an excluded asset, which means that it is not counted toward your asset limit and you can keep the house as long as you or your spouse continues to reside there. But when you both die, the county will have a claim against the estate of the surviving spouse to collect the value of Medical Assistance benefits paid on behalf of either spouse. In other words, the county cannot collect any money from you or your estate or put a lien on your house until after you and your spouse are deceased.
So, where does this idea come from that the county or nursing home can take your house? Well, there are a couple of instances where this can become an issue. First, consider what happens when a single person goes into a nursing home or where both spouses go into a nursing home. Can they still protect the house? The answer is: No. They have a six-month grace period and then the house has to be put up for sale. Does the county take the proceeds from the sale of the house? No. Again, as long as the Medical Assistance recipient or their spouse is still living, the county cannot take anything. But the proceeds from the house sale will have to be spent on nursing home care, which may be why many people think the nursing home “takes” the house. If neither spouse is capable of residing in the home, the home generally has to be sold and the proceeds spent on care.
Second, a lot of people try to leave the home to their children when they die. But when a single person or the surviving spouse dies, the county can put a lien on the house to collect the balance of Medical Assistance benefits paid on behalf of the deceased person or their spouse. In most cases, the children who inherit the house will have to pay off this lien before they can transfer the title to the house into their names. And in most cases, this means selling the house to pay off the lien. Again, the county doesn’t “take” the house, but they force a sale of the house to collect the Medical Assistance estate recovery claim.
Are there ways to protect the home from having to be sold to either pay for care or pay a Medical Assistance estate recovery claim at death? Yes, there are! And you should talk to an experienced elder law attorney for advice on how to protect your home as soon as you anticipate the need for long term care.
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