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  • Writer's pictureBrian A. Raphan, Esq.

Why your Medicaid Application should be entrusted to an Elder Law Attorney:


What Is Medicaid? Medicaid is the government funded program through which many persons receive care at home or in a nursing home. Medicaid is a state-wide and state specific program, currently administered through each county’s Department of Social Services (with the exception of the five counties comprising metropolitan NewYork, which are administered through the single NYC entity, Human Resources Administration).

The process of applying for Medicaid is complex and often times confusing. Why? Because Medicaid offers many different programs, the eligibility rules and application processes differ.

Having an attorney who has a full and thorough understanding of the benefits available through Medicaid, the rules for eligibility, and the process by which to secure those benefits provides a tremendous advantage to the applicant for Medicaid benefits.

The Medicaid Application Process: Information Needed Depending upon the program for which you are applying, different information may be required. All Medicaid applications, regardless of benefits sought, require extensive personal documentation and detailed proof of income. Certain pro- grams require proof of assets and sixty months of records for all assets held during that period.

Help with the Application An experienced Elder Law Attorney can advise you on the benefits available, the process for obtaining the benefits you need, the provisions of the law that might enable your family to protect assets, and the rights that certain family members of the applicant may have. In New York State, it is not required that an attorney assist with the Medicaid application.

In fact, you can prepare the application yourself. There are many entities, agencies, or divisions within hospitals and nursing homes which may offer to prepare and submit the application for you for free or for a reduced fee.

However, you must exercise great caution when accepting that help, as those entities and agencies are not obligated to advise you of your rights and are not permitted to give legal advice or implement legal strategies. Using these services might expose you and your family to risk.

Be Wary Of: • Offers to prepare the Medicaid application free of charge or at a significantly reduced rate --if it’s“too good to be true,”it probably is! • Persons holding themselves out as attorneys or giving legal advice without confirming they are admitted to the New York State Bar. • Guarantees of Medicaid eligibility or other government benefits. • Agencies, entities or groups which have as their “sole job”the securing of Medicaid benefits for you. These entities may not have any liability to you if they fail to secure Medicaid eligibility.

Exposure to Risks When an Elder Law Attorney Is Not Used 

The law has many nuances and intricacies. An Elder Law Attorney has the obligation to ensure that you are fully informed of all the provisions of law related to Medicaid, and to accurately answer any questions you may have. The Elder Law Attorney does not work for the nursing home. In fact, the Elder Law Attorney has an ethical duty to advocate for you and your interests.

Failing to use an experienced Elder Law Attorney experienced in Medicaid Planning and Applications could expose you to the following risks: • Failure to be fully informed of spousal rights;

• Failure to be informed of opportunities for asset protection; • Incomplete or inaccurate application submission; • Denial of application due to failure to provide information; • Failure to be informed of consequences of prior actions; • Imposition of a penalty period for which mitigation strategies could have been implemented;

• Failure to have a dedicated advocate working with you through the process.


Brian A. Raphan, Esq.

Managing Partner


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