In determining such intent, “the proper standard to be applied is a subjective ‘intent’ standard and not an objective ‘expectations' standard” (Anna W. v. Bane, 863 F.Supp. 125, 130 ). There is a “presumption in favor of the homestead exemption” in cases where a hospitalized Medicaid applicant intends to return home (Matter of Pawlowski v. New York State Dept. of Social Servs., 147 A.D.2d 953, 954, 537 N.Y.S.2d 406 ; see Wiszniewski v. New York State Dept. of Social Servs., 140 A.D.2d 952, 529 N.Y.S.2d 629 ). In light of the above, when the petitioner submitted her application for Medicaid benefits to the WCDSS seeking benefits retroactive to December 1, 2010, it was incumbent upon the WCDSS to evaluate her available resources on three different dates: December 1, 2010, January 1, 2011, and February 1, 2011.
We remit this matter to respondent Monroe County Department of Social Services to increase petitioner's CSRA by the amount of the excess resources attributed to petitioner's decedent and to redetermine the Medicaid eligibility of petitioner's decedent. We further conclude that petitioner is entitled to an award of attorney's fees and we remit the matter to Supreme Court for a determination of the reasonable amount of attorney's fees (see, Matter of Johnson v Blum, 58 N.Y.2d 454; Matter of Pawlowski v New York State Dept. of Social Servs., 147 A.D.2d 953, 954; Wiszniewski v New York State Dept. of Social Servs., 140 A.D.2d 952, 953, lv dismissed 72 N.Y.2d 1003; Matter of Palmer v New York State Dept. of Social Servs., 125 A.D.2d 977, 978).
Nonetheless, respondent Commissioner confirmed the agency's determination to discontinue petitioner's public assistance benefits. Under the circumstances of this case, we conclude that the Commissioner acted in an arbitrary and capricious manner in adhering to the agency's decision in light of the fact that petitioner provided all of the requested information either before or at the fair hearing (see, Wiszniewski v New York State Dept. of Social Servs., 140 A.D.2d 952, 953, lv dismissed 72 N.Y.2d 1003). Moreover, the record demonstrates that petitioner diligently sought to obtain the requested information but was not given assistance by her caseworker (see, 18 NYCRR 351.20 [b] [4]).
Furthermore, it is not for petitioner's counsel to make those determinations; nor can counsel dictate the means by which the County shall value those assets. Petitioner's reliance upon Wiszniewski v. New York State Dept. of Social Servs. ( 140 A.D.2d 952) is misplaced. At issue there was whether the applicant, who was then in a nursing home, was incapable of ever returning to her home and therefore eligible for the homestead exemption (supra, at 953). In that instance the burden of proof was upon DSS (supra). Here the question is not who has the burden of proof, but did the applicant fail to furnish complete information relative to eligibility (see, Matter of Gilbert v. Blum, 90 A.D.2d 288, 290, appeal dismissed 59 N.Y.2d 760). There is quite sufficient evidence to support DSS' determination that petitioner failed in that respect.
From our review of the record, we find that the agency had no "medical verification" that the petitioner would be unable to return to her home (see, 18 NYCRR 360.6 [b] [2] [ii]). Other than speculative inferences to be gleaned from two DMS-1 forms, prepared several months after the property was transferred, the agency presented no medical verification to overcome the presumption in favor of exemption of the homestead in cases where the hospitalized patient intends to return home (see, Wiszniewski v New York State Dept. of Social Servs., 140 A.D.2d 952, lv dismissed 72 N.Y.2d 1003). Petitioner testified at the fair hearing that her mother's stay at an adult proprietary home was intended to be temporary.