Q: My father died after 3 1/2 years in a nursing home. He ran out of money after six months, and was on Medicaid for the past three years, during which the home took all of his Social Security and left him $30 per month for his “extras.” Not two weeks before he died, his older sister died without a will – meaning that dad inherited nearly $80,000 from her estate. We opened dad’s estate and received claims by the state Medicaid agency for everything Medicaid had provided to dad for those three years – nearly $70,000. It doesn’t seem fair that a windfall to my father should be taken from his family, since dad had to sell everything to take care of my mother before she died. Is there anything we can do to preserve this money?

A: Probably not. The claim against your father’s estate is being made under what is called “Medicaid estate recovery.” At the death of a Medicaid recipient like your father, the state Medicaid agency is required by federal law to recover from his estate the Medicaid dollars that were expended for him during his lifetime for nursing home, hospital and other medical expenses.

While the most usual target of Medicaid recovery is the family home, other assets are certainly fair game. In order to recover from his estate, the Medicaid expenses must have been paid after your father reached age 55.

Each state is required to establish criteria for “hardships” that will exempt persons in certain situations (prescribed by the state) from recovery efforts. For example, if an unmarried adult child lived with your father in the family home for a year prior to his death, there would be no recovery. And, according to federal law, there would be no recovery if your father was survived by a child who is under 21, blind or disabled. Also, there could be no recovery until after the death of both the recipient and his/her surviving spouse. In some instances, recovery is waived if there would be an undue hardship (this is seldom granted) or if the recovery would not be cost-effective – such as where there is $10,000 in assets to pay a $100,000 claim. Each state has somewhat differing laws that deal with recovery, but all must comply with the established federal guidelines.

Here, even if your father had not died, in all probability he would have been disqualified from receiving further Medicaid benefits when your aunt died, and he would have been required to spend down the inheritance received from her. What can you do? Probably nothing that would be successful. The problem here is that your aunt did not prepare a proper will. That’s why it’s always a good idea for family members to review not only their wills, but also the beneficiary designations on their life insurance, annuities, IRAs, 401(k)s, and pensions so as to either exclude incapacitated family members as beneficiaries or create special needs trusts for them.

Q: After my father died, I moved in with my mother because her health was failing. Four years later, after mom has suffered several strokes and hospitalizations, the doctors tell me I should begin looking for a nursing home for her. Realizing that her assets would not last long and that her income of $890 per month was insufficient to pay for her care, I began looking for a Medicaid nursing facility. Was I ever shocked at the admission process and the complications involved. The hospital discharge personnel are nice, but have been very little help. Exactly what are the admission rules, and how will I know the best thing to do?

A: Unfortunately, the nursing home admission process is anything but easy, especially if you have little or no money. Because there are no centralized filing procedures, you will have to visit a number of facilities, complete applications, and see your mother placed on waiting lists for a bed. This process can be very frustrating, especially when a family member is in a hospital and their Medicare days are running out.

While the Nursing Home Reform Act of 1987 includes a number of “guarantees” that are supposed to keep folks like your mother from waiving her benefits, practically speaking, everything is a negotiation. Discrimination by a Medicare- or Medicaid-certified facility against Medicaid-eligible residents is prohibited in many instances; however, nothing expressly prohibits unfair admission practices based on source of payment. In fact, only a handful of states expressly prohibits this type of discrimination and prevents Medicaid-eligible individuals from being refused admission or placed on Medicaid-only waiting lists even though beds are available.

Since the admission procedure is so important and complex, we strongly suggest that you seek the assistance of a private geriatric care manager (www.caremanager.org) who can talk with the hospital discharge planner and help you find a suitable facility for your mother. We also suggest that you contact an experienced elder law attorney in your area who can review the admission documents to make sure that your mother’s rights are neither restricted nor altered. In any event, don’t sign any admission agreement that contains a requirement that you will guarantee payment.

– Jan Warner is a member of the National Academy of Elder Law Attorneys and has been practicing law for more than 30 years. Jan Collins is editor of the Business and Economic Review published by the University of South Carolina and a special correspondent for The Economist.