Andover, MA asked in Family Law and Elder Law for Massachusetts

Q: Good afternoon, What is the caretaker child exemption law in Massachusetts and how do I qualify for this? thank you

My mom is 92 years old and she is living with me right now as her home is being repaired. I have been taking care of her since 2/2023 when my dad passed away. How can a person qualify for the caretaker child exemption law?

Thank you

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1 Lawyer Answer
Michael M Marques
Michael M Marques
  • Elder Law Lawyer
  • Boston, MA
  • Licensed in Massachusetts

A: The Caregiver Child Exemption generally enables an elderly individual to transfer their home to their adult child without violating Medicaid's Look Back 60-month period on asset transfers. Under 130 CMR 520.019(D)(6)(d), a transfer of a former principal residence by a nursing home resident to her child for less than fair market value during the look-back period is permissible provided that the nursing-facility resident’s child:

1) was living in the nursing-facility resident’s home for at least two years immediately before the date of the parent's admission to the facility; and 2) who, as determined by the MassHealth agency, provided care to the nursing-facility resident that permitted the parent to live at home rather than a nursing home.

In order to qualify for the exception, the MassHealth agency will request documentation supporting your mother's claim you have resided with her and has been providing care at home. You should be aware that under the 2012 decision by the Massachusetts Court of Appeals, the “Caretaker Exemption” may no longer be applicable to situations where the care could have been provided at home or in an assisted living facility. The applicable case is Maguire v. Director of the Office of Medicaid , where the appellate court stated that the parent and child must demonstrate that the care provided by the child met the law’s criteria for daily assisted living activities. You may want to consult with a local elder law attorney of your choice in Massachusetts for more guidance.

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