When it comes to protecting your life savings and planning for potential long-term care needs, choosing the right Medicaid planning attorney can make all the difference. The complexities of Medicaid eligibility, asset protection strategies, and the five-year lookback period require specialized legal expertise that general practice attorneys may not possess.
For middle-income families in Brooklyn and throughout New York, understanding what questions to ask during your initial consultation will help you find an attorney who truly understands your unique situation and can develop a comprehensive strategy to protect your hard-earned assets. This guide will walk you through the most important questions that will help you evaluate an attorney's qualifications, approach, and ability to meet your specific needs.
1. How Long Have You Practiced Elder Law and Medicaid Planning?
Experience matters tremendously in Medicaid planning. New York's Medicaid regulations are constantly evolving, and navigating these complex rules requires years of hands-on experience with real client cases. Ask potential attorneys about their specific track record with Medicaid planning—not just general elder law or estate planning.
Look for an attorney who has practiced elder law exclusively or primarily for at least several years. They should be able to discuss recent changes to New York's Medicaid regulations and how these updates might affect your planning. An experienced attorney will have developed relationships with local Medicaid offices and understand the practical realities of the application process, not just the theoretical legal framework.
Additionally, inquire about their certification status. Board certification in elder law demonstrates a commitment to the field and a level of expertise verified by professional organizations. While not every excellent attorney pursues certification, it can be a valuable indicator of specialized knowledge.
2. What Are My Current Medicaid Eligibility Requirements?
New York has specific asset and income limits that determine Medicaid eligibility, and these thresholds change annually. As of 2025, Community Medicaid has resource limits of approximately $32,396 for an individual. For Nursing Home Medicaid, similar limits apply, though married couples have different allowances for the community spouse who remains at home.
Your attorney should explain these limits clearly in the context of your specific financial situation. They should also clarify the difference between countable and exempt assets. For example, your primary residence may be exempt up to certain equity limits, and one vehicle is typically exempt regardless of value.
Understanding where you currently stand regarding eligibility will help you and your attorney develop an appropriate timeline and strategy for Medicaid planning. If you're already close to qualifying, the approach will differ significantly from situations where substantial assets need protection.
3. Can You Explain New York's Five-Year Lookback Period?
The five-year lookback period is one of the most critical aspects of Medicaid planning that families must understand. When you apply for Nursing Home Medicaid in New York, the state reviews all financial transactions during the 60 months preceding your application date.
Any uncompensated transfers—meaning gifts or sales below fair market value—made during this period can trigger penalty periods of Medicaid ineligibility. The penalty period is calculated by dividing the total value of transferred assets by New York's regional rate for nursing home care.
Your attorney should explain how the lookback period applies to your situation and discuss strategies for protecting assets while avoiding penalties. They should also address whether early planning can help you transfer assets outside the lookback window or whether other strategies might be more appropriate given your timeline.
It's also worth noting that while New York had planned to implement a 30-month lookback for Community Medicaid (home care), this has been delayed. Your attorney should keep you updated on any regulatory changes that might affect your planning.
4. What Asset Protection Strategies Would You Recommend for My Situation?
Every family's situation is unique, requiring a customized approach to asset protection. A knowledgeable attorney should assess your complete financial picture before recommending specific strategies.
Common asset protection strategies in New York include Medicaid Asset Protection Trusts (MAPTs), pooled income trusts, strategic gifting within legal parameters, converting countable assets to exempt assets, purchasing exempt assets like a primary residence or prepaying funeral expenses, and establishing annuities under specific circumstances.
Your attorney should explain the advantages and disadvantages of each strategy relevant to your situation. For instance, an irrevocable trust can protect your home and savings, but you'll need to establish it at least five years before applying for Medicaid benefits. Pooled income trusts work well for individuals whose income exceeds Medicaid limits but who need home care services.
Be wary of attorneys who recommend a one-size-fits-all approach or pressure you into immediate decisions without fully analyzing your circumstances. Quality Medicaid planning requires careful consideration of your assets, family dynamics, health status, and long-term goals.
5. How Can I Protect My Home from Estate Recovery?
Many families' greatest concern is protecting the family home. While your primary residence is typically exempt during the Medicaid eligibility determination (up to certain equity limits), New York's Medicaid Estate Recovery Program (MERP) can place liens on your home and seek reimbursement after your death.
Your attorney should explain how estate recovery works and what strategies can protect your home from these claims. Placing your home in a Medicaid Asset Protection Trust at least five years before applying for benefits removes it from your estate while allowing you to continue living there. Other strategies might include life estate deeds or transferring the home to a caretaker child who meets specific requirements.
Understanding these options early is crucial because many protective strategies require advance planning to clear the lookback period. Your attorney should also explain situations where the state cannot recover from your estate, such as when a surviving spouse, a child under 21, or a blind or disabled child survives you.
6. What Are Your Fees and How Are Billing Structures Determined?
Legal fees for Medicaid planning can vary significantly based on the complexity of your situation, the attorney's experience, and your geographic location. Elder law attorneys in New York typically charge between $195 and $500 per hour, though some use flat-fee arrangements for specific services.
Ask for a clear explanation of how you'll be billed. Some attorneys charge hourly rates for ongoing work, while others offer flat fees for particular services like creating a Medicaid Asset Protection Trust or handling the Medicaid application. Understanding the billing structure upfront helps you avoid unexpected costs.
Also inquire about what services are included in the quoted fees. Does the fee cover only the initial consultation and plan creation, or does it include assistance with the Medicaid application, ongoing plan reviews, and adjustments as laws change? Will you be charged separately for paralegal work, document preparation, or filing fees?
Quality Medicaid planning is an investment in protecting your family's financial security, but you deserve transparency about costs from the beginning. Don't hesitate to compare fee structures among several qualified attorneys before making your decision.
7. What Is Your Process for Developing a Medicaid Plan?
Understanding an attorney's planning process will give you insight into how thoroughly they'll address your needs. A comprehensive Medicaid planning process should begin with an in-depth consultation to understand your complete financial situation, family circumstances, health status, and long-term care preferences.
The attorney should request documentation including recent bank statements, investment accounts, retirement accounts, property deeds, existing estate planning documents, and information about any significant financial transactions from the past five years. This thorough review allows them to identify potential eligibility issues and planning opportunities.
After analyzing your situation, the attorney should present a written plan explaining recommended strategies, the timeline for implementation, expected outcomes regarding Medicaid eligibility, potential risks or complications, and estimated costs for legal services.
The best attorneys also discuss how your Medicaid plan integrates with your overall estate plan, ensuring that asset protection strategies align with your wishes for passing wealth to future generations. They should also explain how the plan might need adjustment if circumstances change, such as a sudden health crisis or changes in Medicaid regulations.
8. How Will You Help Me Through the Medicaid Application Process?
The Medicaid application process in New York is notoriously complex and document-intensive. Even minor errors or omissions can result in denials or delays that may prove costly when long-term care is urgently needed.
Ask potential attorneys specifically what assistance they provide with the application itself. Will they complete the application on your behalf or simply review what you've prepared? Do they communicate directly with Medicaid caseworkers to address questions or provide additional documentation?
Your attorney should also explain what happens if your application is initially denied. They should be prepared to help you request a fair hearing and represent your interests in appealing unfavorable decisions. Having an attorney who understands the appeals process can be crucial, as many initial denials are overturned upon proper presentation of facts and applicable law.
Additionally, inquire about their availability throughout the process. Medicaid applications often require quick responses to information requests, and having an attorney who is accessible and responsive can make the difference between approval and frustration.
9. Are There Differences Between Medicare and Medicaid That Affect My Planning?
Many people confuse Medicare and Medicaid, but these are entirely different programs with distinct eligibility requirements and coverage. Your attorney should clearly explain these differences and how both programs might factor into your long-term care planning.
Medicare is a federal health insurance program primarily for individuals 65 and older, regardless of income. It covers hospital stays, doctor visits, and limited skilled nursing facility care following a hospital stay, but it does not cover long-term custodial care in nursing homes or ongoing home care assistance.
Medicaid is a joint federal-state program that provides health coverage to individuals with limited income and resources. In New York, Medicaid does cover long-term custodial care both in nursing homes and, in many cases, at home. However, qualifying for these benefits requires meeting strict financial eligibility requirements.
Understanding this distinction is essential because many families exhaust their savings paying privately for care, mistakenly believing Medicare will eventually cover these costs. A knowledgeable attorney will help you plan for the reality that Medicaid may become necessary to cover extended long-term care needs.
10. When Should I Start Medicaid Planning?
Timing is perhaps the most critical factor in effective Medicaid planning. The five-year lookback period means that ideally, you should begin planning well before you anticipate needing long-term care. However, your attorney should be able to help you regardless of your timeline, though your options may be more limited if a care crisis is imminent.
For individuals in good health, starting Medicaid planning in your 60s or early 70s provides maximum flexibility. This timeframe allows you to establish irrevocable trusts or implement strategic gifting strategies that will clear the lookback period before you're likely to need nursing home care.
However, if you're already facing health challenges or a loved one needs immediate care, don't assume it's too late. An experienced Medicaid planning attorney can still employ various strategies even during a crisis, such as converting countable assets to exempt assets, establishing pooled income trusts for those with excess income, or utilizing spousal refusal strategies in certain circumstances.
Your attorney should assess your current health status, family health history, and care preferences to develop a realistic timeline for your planning. They should also explain how different life events—like a sudden illness, divorce, or inheritance—might necessitate revisiting and adjusting your Medicaid plan.
11. How Will Medicaid Planning Affect My Estate Plan and My Heirs?
Medicaid planning doesn't exist in isolation—it's an essential component of comprehensive estate planning. Your attorney should explain how asset protection strategies will affect your ability to pass wealth to your children and other beneficiaries.
For example, assets placed in a Medicaid Asset Protection Trust are preserved from Medicaid spend-down requirements and ultimately pass to your named beneficiaries outside of probate. However, you lose direct control over these assets, which can be a significant consideration for some families.
Your attorney should also discuss potential tax implications for your heirs. When you transfer assets to an irrevocable trust, your heirs may lose the "step-up in basis" they would receive if you retained the assets until death, potentially resulting in higher capital gains taxes when they eventually sell appreciated property.
Additionally, if you have specific wishes for asset distribution—such as providing for a disabled child, ensuring equal treatment among children, or supporting charitable causes—your attorney should demonstrate how these goals can be achieved while still protecting assets from long-term care costs.
12. What Happens If Medicaid Regulations Change After We Create Our Plan?
Medicaid regulations at both the federal and state levels change periodically, and these changes can significantly impact your planning. Your attorney should explain how they stay current with regulatory developments and how they'll help you adapt your plan if necessary.
Ask whether the attorney offers ongoing relationship services, such as periodic plan reviews to ensure your strategies remain compliant and effective as laws evolve. Some attorneys include these reviews in their fee structure, while others offer them as separate services.
Your attorney should also be able to point to examples of how they've helped clients adjust plans in response to past regulatory changes. This demonstrates not only their knowledge of Medicaid law but also their commitment to protecting clients' interests over the long term.
Finally, inquire about how the firm communicates important updates to clients. Do they send newsletters, host educational workshops, or proactively reach out when changes might affect your specific situation? Ongoing education and communication are valuable services that distinguish exceptional elder law practices from those that simply draft documents and move on.
Moving Forward with Confidence
Medicaid planning is one of the most important financial decisions you'll make for your family's future. By asking these essential questions during your consultation, you'll gain clarity about an attorney's qualifications, approach, and commitment to protecting your assets while ensuring access to quality long-term care.
The right Medicaid planning attorney will not only answer these questions thoroughly but will also take time to understand your unique family dynamics, cultural values, and personal goals. They'll develop a customized strategy that provides peace of mind, knowing your lifetime savings are protected and your family won't face devastating financial hardship should long-term care become necessary.
Don't wait until a crisis forces rushed decisions with limited options. Whether you're just beginning to think about long-term care planning or facing more immediate concerns, reaching out to a qualified elder law attorney is the first step toward securing your family's financial future. The investment in proper planning today can save your family hundreds of thousands of dollars and immeasurable stress in the years ahead.
