Elder Law and Medicaid Planning: What makes us different?

All your life savings can be used up in  a very small amount of time should one require nursing home or home health aide care.  It might even be compared to a 100% estate tax where When looking to protect lifetime of savings while setting up for medical care in later years, often the best choice is to apply for Medicaid.  Dealing with agencies in achieving this can be complicated and time-consuming so it is essential that you have someone competent and caring advocating on your behalf.  We have handled myriads of applications for clients who needed to qualify for either home or community-based Medicaid or Institutional or Nursing Home Medicaid. 

 Section 529A of the Internal Revenue Code, the Achieving a Better Life Experience (or “ABLE”) Act, was signed into law in December of 2014. This Act goes hand in hand with the Special Needs Fairness Act which expands the ability for competent disabled individuals to establish their own special needs trusts. Special needs trusts are often established for the benefit of disabled individuals as a planning mechanism to assist in paying for certain expenses for persons with a disability without limiting their ability to qualify for government benefits. ABLE Accounts may be another alternative method to consider for achieving this.

ABLE Accounts are allowed under IRS Code Section 529A and are limited to individuals with a disability that manifested itself before the age of 26. As long as this qualification is met, the account may be set up at any time after. Current law states that the aggregate annual contributions that may be deposited into the account cannot exceed $14,000. The funds in the account will accrue free of income tax and may be used for a variety of purposes such as transportation, housing, education, technology, and recreation. While some beneficiaries may be receiving Supplemental Security Income, this will only be affected if their ABLE Account exceeds $100,000. There is no effect on Medicaid benefits; however, after the beneficiary of the account dies, there is a required payback for the benefits received under Medicaid. A notable difference between ABLE Accounts and third party special needs trusts is that the ABLE required Medicaid payback also applies to funds contributed by non-legally responsible third parties.

At least 40 states have enacted ABLE legislation or have proposals pending, making them quite accessible (ABLE Accounts must be set up in the state of the owner’s domicile.) ABLE Accounts do not require court approval to be set up and are a strong option to consider for special needs planning. This is noteworthy for individuals with physical disabilities who do not having a living parent or grandparent, as they may need to get a court involved in order to set up a non-pooled first party SNT for themselves.

If this sounds like a tool that may be useful for a certain beneficiary, do not hesitate to contact our firm to learn more about how we can help.

In this area, in particular,  the procedures have been changing rapidly so it is essential to be represented by someone who is adept at navigating the ever changing waters of the Medicaid process.  We have done this countless times and we can do it for you.


Lewis and Garbuz, P.C. represents clients throughout New York City and the surrounding areas, including: Brooklyn, Bronx, Queens, Westchester, Nassau County, New Jersey and Rockland County and Florida.

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