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Exceptional Everyday Living Expenses?

Brian and BrandiAs discussed in previous postings, the community spouse Minimum Monthly Maintenance Needs Allowance (“MMMNA”) will remain the same as in 2015 — $2,980.50. The MMMNA is the amount that is set to make sure the healthy spouse has enough monthly income to continue to live in the community. More specifically, if the well (or community) spouse’s income falls below $2,980.50 per month the difference can be made from the income of the spouse in the nursing home. Put another way, if the community spouse’s income falls below the MMMNA, the institutionalized spouse makes up the difference, assuming he or she possesses sufficient income to do so.

Further, if either spouse establishes that the community spouse needs income, above the MMMNA level, due to exceptional circumstances resulting in significant financial duress, then “an amount adequate to provide such additional income as is necessary” shall be substituted for the MMMNA (see Social Services Law § 366-c)

“Significant financial distress” is defined in regulations as “exceptional expenses which the community spouse cannot be expected to meet from the [MMMNA] or from amounts held in resources. Such expenses may be of a recurring nature or may represent major one-time costs, and may include but are not limited to: recurring or extraordinary non-covered medical expenses; amounts to preserve, maintain or make major repairs on the homestead; and amounts necessary to preserve an income-producing asset” (18 NYCRR 360-4.10 [a] [10]).

Example: Brian and Brandi are husband and wife living in Smithtown, NY. Brian entered a Nursing Home in Hauppauge, NY on January 12, 2015. Brandi requested an increase in the MMMNA to $3,160.96 in order to relieve significant financial distress. She maintains she is experiencing significant financial distress based on exceptional expenses made several years ago while Brian resided at home. She stated that the household incurred extraordinary expenses resulting from necessary repairs made to their house. The repairs were necessary in order to preserve and maintain their house for the future as the bathroom presented with mold and the windows leaked water into the home.

Brandi states she is not able to meet her monthly household expenses based on her monthly net income. This is primarily attributable to a loan she had taken out several years ago costing her approximately $400.00 in monthly payments and the expense is presenting significant financial distress. She states that her expenses now exceed her monthly income. The loan was utilized for necessary repairs to the house during the time Brian resided at home. Brandi maintains that new windows were necessary because water was leaking through the existing windows and damaging the walls. The old windows were not able to contain the heat as well. Brandi also states that while Brian was residing at home she also made repairs to the bathroom and spent more than $6,000.00 to make the bathroom handicap accessible as Brian lost both legs due to diabetes and the prior bathtub and sink were not handicap accessible. Additionally, the old tile was a potential health hazard at it contained mold and needed to be replaced. So she had a new bathroom tile installed. Thus, approximately $18,000.00 was spent toward installing new windows and bathroom (repairs made to the house).

Decision: FOR BRANDI. Brandi has both significant financial distress and extraordinary circumstances warranting an increase of the MMMNA. She has incurred $18,000 in expenses for necessary home repairs and to make the bathroom in the home handicap accessible for Brian while he was living at home. Brandi is entitled to an increase in the MMMNA in order to pay these incurred expenses out of Brian’s net monthly income. i

Aaron E. Futterman, CPA, Esq. is a partner in the law firm of Futterman & Lanza, LLP with offices in Smithtown, NY and clients throughout Suffolk, Nassau, Queens, Brooklyn, Bronx, Richmond, New York, Westchester and Rockland Counties. He concentrates his practice to Elder Law, Medicaid Planning, Medicaid Applications, Estate Planning, Probate, Estate Taxes, and Estate Administration.

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