MEDICAID IN FLORIDA Part I
Portia B. Scott, J.D., L.L.M. • June 11, 2024

Medicaid planning is a complicated concept with many moving parts, all of which need to work in tandem and cohesively together to achieve the goal of providing quality long term care and/or nursing services to a Floridian in need.


People often merely state that Medicaid is always a payor of last resort, but that expression needs to be defined and discussed as part of an over-all plan.


The first issue addressed, then, is what is meant by “The payor of last resort?”


Medicaid is, indeed, the payor of “last resort.”  Briefly, this means, when all other medical assistance care is gone, Medicaid may step up and help pay for some uncovered medical expenses.


Although Medicaid is a Federal program, it is administered on a State-by-State basis. When Medicaid was first being created, each state in the Union submitted their own plan on how the funds available to their own State’s Medicaid applicants. Florida submitted its plan which continues (with some tweaks) as to be used by Florida’s Medicaid system.


If the applicant (the “patient”) otherwise qualifies for Medicaid in Florida, the State’s Medicaid program will help pay the expenses of Long Term Care, including Nursing Home Care.


So, if the patient has a privately purchased policy for Long Term Care Insurance, those benefits will have to be fully depleted before Medicaid will provide any financial help.


If the patient has more than $2,000.00 in “countable assets,” those will need to be spent before Medicaid will help. (We do mean “spent,” too; not gifted away!)


If the patient is on Medicare, Medicare will step back and no longer pay once Medicaid has taken over.  This means that the patient’s Medicare premium will no longer be deducted from any Social Security payment, increasing the net income of the patient.


Further, there will no longer be a need for supplemental health insurance since the policy (Medicare) which was being supplemented, no longer is paying.


When good planning has been implemented, including, at times, some of the countable assets of the patient having been legally and permissibly transformed into uncountable assets, Medicaid will step in to help pay for the Long Term Care Nursing Home expenses. 


This is what is meant when the term “payor of last resort” is used.


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Homestead Equity Uses for the Elderly

By Portia B. Scott, J.D., L.L.M. • September 22, 2025
For many families, the home is the single asset with the most value. I understand that financial planners do not like to include the equity in the home when making determinations of wealth, but sometimes it is worth considering. Three questions and accompanying scenarios especially come to mind for the Elder Law practitioner. First, how can a client use the equity in the home to fulfill the client's desire to age in place? Second, does the client need to spend all of the home's value before Medicaid will help when moving into long term care? Third, what, if anything, can be left by the client for the children once the client is gone? In Florida, the answers are as follow. If the client has significant equity in the client's home, a Home Equity Line of Credit ("HELOC") or a Reverse Mortgage are options to be considered. The differences between the two are that a HELOC tends to be less expensive way of accessing the equity in the home, at least initially, but does require monthly repayments to be made on the loan. So, the borrower witl need to include some repayment in the monthly household budget. The borrower has greater options about where the borrower lives. For instance, if the borrower chooses to go live in an assisted living facility, as long as the HELOC is being repaid, there is no issue. This means, among other things, the borrower could rent the property out and use the net proceeds to pay the HELOC. (There are other issues this would bring up including those regarding homestead, however.) A Reverse Mortgage, on the other hand, tends to be more expensive (typically higher interest rates and, often, origination expenses) but does not have to be paid back until the borrower dies or otherwise stops living in the home. This means that if the borrower wants to live at home, the borrower can use the equity to pay for household expenses, taxes, home health aides or companions, lawn care and any other duties the borrower can not, or maybe just does not want to, perform. Does the dient need to spend all of the home's value before Medicaid will help with long term care? Not in Florida, no. In 2025 if a single persons owns a home with less than $730,000.00 in equity and that person need Medicaid to help with long term care bills (nursing home), as long as the patient otherwise meets Medicaid requirements, the patient may keep their home. When the person passes away, the family can inherit the home without worrying about that particular asset being subject to Medicaid State Estate Recovery ("claw back"). With the right plan in place, the last, possibly most valuable asset of the nursing home patient, the client can create the legacy for the children after the patient is gone. More than $730,000.00 in equity? Maybe the client can borrow against the house and use the funds (not gifting the funds) thereby lowering the actual equity down to below $730,000.00? Buying a more expensive car, putting on that new roof the insurance company is going to require soon anyway, upgrading to impact windows, remodeling the kitchen with all new appliances and flooring throughout, taking a trip to see loved ones, paying estimated future income taxes: all of these are ways to spend that "excess" equity. For a married couple when one of them is in a nursing home and the other is not and remains in the community, this community spouse does not have to spend down any of the equity of the house the couple owns.  Finally, if a homestead is left to someone who is descended from the homeowner's grandparent (l know, it is a long way to say blood relative), the home can be left to such a person without having to pay Medicaid any of the asset the homestead represents. Further, because of the "stepped up" basis in the house, leaving a home can truly create a way of ensuring an inheritance which many people consider very valuable indeed.

No, the Judge will not fix it for you.

By Portia B. Scott, J.D., L.L.M. • June 4, 2025
I have, from time to time, an opportunity to review family law agreements when dealing with a probate estate proceeding or a Trust administration. These family law agreements can take the form of a Divorce Decree, Final Judgment of Dissolution of Marriage, a Post-Nuptial Agreement, an Ante-Nuptial agreement (often called a "Pre-Nup"), mediation agreements and temporary orders which might include temporary alimony payments plus of course, the common charging liens filed by attorneys involved. I also get to review Qualified Domestic Relations Orders ("QDRO's") from time to time. Many of these documents are drafted without the help of an attorney. Sometimes, they will have been drafted by a paralegal or another lay-person, sometimes by the parties themselves. When I make inquiry of the parties about the documents, I often find the people who drafted them believe that, if there were a Judge involved in the underlying matter, the Judge would "fix" the document if it were wrong. So, if a Pre-Nup calls for extra alimony in the case of one party's infidelity, and, if that is not something the law books would allow, they believe that the Judge would tell them so and strike it from the agreement. Similarly, if someone's settlement agreement provides for one party to pay the other alimony even in the event of the remarriage of the party receiving alimony, the paying spouse believes that the Judge will tell them that Florida law does not require such payments to continue. The judge might similarly strike a provision for "permanent alimony" if the legislature had prohibited judges from ordering permanent alimony. Even if a QDRO was ordered to divide up one party's 401(k), some people believe the Judge will create the QDRO. None of this is true. If you come before the Court with an agreement, you can actually change the law as it applies to your own case. So, if permanent alimony has been ended by the legislature, but you agree to it in your settlement agreement, the Judge is not going to advise you that you are going against what authority the Court would have if you had not settled and had gone to trial. The Judge may ask you if you really agree to these terms and, if so, enter the Order requiring more than the Judge could ever have ordered at a contested trial. The best you can hope for from a Judge is when the judge sees the document - if the Judge reads it- is for the Judge to tell you to consult an attorney. If a Judge ever does tell you something like, "you really should talk to an attorney," this is a big red flag and you should take the Judge's advice. The Judge cannot, may not give you any advice other than to recommend you speak with an attorney. The long and short of it is there are reasons why it can often end up being less expensive to consult an attorney than to do some work for yourself.