Is Homestead Protection Lost When You Move Into A Nursing Home?

I often get calls or emails from people who are concerned about protecting their parents assets because their last surviving parent is being moved to an assisted living facility or nursing home. People are concerned primarily about their parents‘ homestead. Many elderly people own their homestead properties free and clear. The question is often whether the nursing home or medical providers can levy upon the homestead to collect medical debts after their parents move from the home.The answer depends on the facts of each case.

A Florida resident can move from a homestead for medical care and retain homestead protection so long as they intend to return to the home. What happens in situations where it is unrealistic medically that the parent will ever be able to return to their homestead? If the parent’s health has declined to the point that their children and their doctors agree that their move to assisted living or nursing home care is permanent the parents may have permanently abandoned their homestead. Yet, the parents may not know their move to assisted living is permanent and in their own mind they intend to return home “when they get better.” The question is whether a person can intend to return to his homestead if it is medically unlikely he can return.

I do not know any case directly on point. I think there are many factors that should be considered. One question is whether the parent has the mental capacity to formulate intent to return. Another fact is whether the former homestead has been rented or listed for sale. Given the bias in case law to protect the debtor’s homestead issue I expect that courts would try to protect the family home when the owner has been forced into a care facility at the end of their life.

About the Author

Jon Alper is an expert in asset protection planning for individuals and small businesses.

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