Updated June 29, 2016

 
Law Offices of D. Victor Pellegrino
Attorney at Law 
2627 Genesee Street33333
Utica, New York 13501
Phone (315) 733-0417
Fax (315) 792-8075

Member: National Academy of Elder Law Attorneys

Elder Law, Trust and Estate and Tax Sections of the New York State Bar Association


"Protecting The Assets of Seniors and Their Families for Forty Years"

HOW TO PLAN YOUR ESTATE

To Avoid Your Assets Being Wiped Out To Pay
for

Nursing Home Costs
and Uncovered Medical Expenses


I have spent 40 years helping seniors and their families protect their home and life savings by showing them how they can plan to qualify for Medicaid and actually qualifying them for Medicaid in the event of a medical emergency.

This document is intended to answer seventeen of the most frequently asked questions I am asked when I meet with families everyday who are interested in protecting their life savings and home from being wiped out to pay for nursing home costs and uncovered medical expenses. I hope you find them helpful in protecting your assets.
 

     1. Q. WILL MEDICARE PAY FOR ALL OF MY NURSING HOME COSTS?

       A. No. Medicare might provide payment for the first 20 days and part of the next 80 days of care in a nursing home, which usually results in a contribution by you of about $156 per day for the 80 days in central New York. This amounts to a personal private pay liability of about $12,480 for the 80 day period. http://www.medicare.gov/coverage/skilled-nursing-facility-care.html

            You should know now if your health insurance will pay all or any part of the approximately $156 per day copay. If not, you should consider applying for Medicaid to pick up the costs of the copay. If for any reason Medicare terminates your Medicare coverage, your medical insurance will probably not pay any part of your rehabilitation or skilled nursing care, leaving you to private pay the whole bill, usually $250 - $300+ per day, even though your insurance was paying all of the co pay while you were on Medicare. :(

            There are strict Medicare conditions you must meet or private pay 100% of your own skilled nursing costs from day one:

          1. You must be hospitalized for medically necessary inpatient hospital care for at least three consecutive calendar days, not counting the day of discharge.  Caution: Being admitted for "observation" vs for "treatment" does not count toward the 3 days

          see http://www.kevinmd.com/blog/2014/02/observation-status-hospital-inpatient.html and

          see http://www.foxnews.com/politics/2014/02/06/frustrating-medicare-catch-who-in-patient-at-hospital-and-who-under-observation/ and

          see  http://newoldage.blogs.nytimes.com/2014/01/10/fighting-observation-status/?_php=true&_type=blogs&_r=0 and

          see  http://www.medicareadvocacy.org/medicare-info/observation-status/ and

          see  Notice of Observation Services (A7257-A/S3926-A): This law requires hospitals to provide patients placed into observation services with oral and written notice within 24 hours of such placement that the patient is in observation status and not admitted to the hospital. The notice must include a statement that observation status may impact the patient's coverage for the hospital services, and advise the patient to contact his or her insurance plan to better understand the implications of being placed in observation status. The patient or their legal representative must sign the notice to acknowledge receipt. The New York State Department of Health is expected to develop guidance for hospitals regarding the written notice. The law went into effect on October 21, 2013, but the provisions governing notice do not go into effect until Monday, January 20, 2014. The text of the new law can be found at: http://open.nysenate.gov/legislation/bill/s3926a-2013


          2. You must be admitted to a nursing home within 30 days of being discharged from the hospital.

          3. The skilled nursing and/or skilled rehabilitative services are those furnished pursuant to physician's orders which: (a) require the skills of professional personnel such as a nurse or therapist; and (b) are provided either directly or under the supervision of such personnel. Please note that if you are receiving physical therapy and not "maintaining" your health, Medicare can cut you off and stop paying the nursing home, leaving you to pay all costs privately.

"Skilled" nursing care is really like extended hospital care, which is very different from "custodial care". Custodial care is that level of care which is merely assistance with what are known as the Activities of Daily Living (ADL's). This type of personal care, such as assistance with eating, bathing, dressing, toileting, transferring in and out of bed and supervision of medications usually do not require the assistance of professionally trained and licensed personnel. The Medicare program does not cover custodial care. Medicare does not provide protection for expenses of long-term health care such as:

              A. The only government program that will pay for long-term care is Medicaid which is a jointly financed federal and state medical welfare program for the poor.  If you qualify, Medicaid can cover nursing home costs, hospital care, home care, doctor bills and drug prescriptions. Medicaid can also cover Medicare deductibles and certain services that Medicare won't pay for.

3. Q. HOW CAN I PROTECT MY ASSETS FROM BEING WIPED OUT TO PAY FOR NURSING HOME COSTS?

    A. The strategy most frequently used to protect and save the senior's assets is called the "impoverishment" strategy. Over a period of time, the senior gradually transfers (either outright or in Trust) and protects all or nearly all of his or her assets for the purpose of qualifying for the Medicaid Program. The "impoverishment" strategy or what is sometimes called "planned poverty" aims to: reduce the senior's assets below the minimum amount for Medicaid and

                    1. qualify him or her for Medicaid, thus
                    2. prevent the senior's assets from being used up to pay for uninsured health care expenses or nursing home costs, to
                    3. allow assets to be transferred to the children or other family members either during the senior's life or on the senior's death and
                    4. allow a healthy spouse to support themselves from assets that would otherwise be used to pay for their spouses nursing home costs.

The key to this planning is to make sure the senior can maintain exactly the same standard of living they have always had, while protecting assets they will not be spending during their lifetime.

          4. Q. IF MY SPOUSE IS GOING INTO A NURSING HOME, CAN HE OR SHE TRANSFER ALL OF HIS OR HER ASSETS TO ME AND QUALIFY FOR MEDICAID?

              A. No. To determine the eligibility of the spouse who is going into the nursing home to receive Medicaid, all of the non-exempt assets held by the husband or wife are added together and then the total divided equally between the spouses. To the extent the healthy spouse's half exceeds $74,820, in New York State, the Community Spouse Resource Allowance,  (CSRA), the excess is attributed to the spouse going into the nursing home, thereby disqualifying the spouse going into the nursing home from receiving Medicaid. See the 2016 Resource and Income limits

                 1. The spouse outside of the nursing home can retain $74,820 in New York State, the CSRA, in otherwise non-exclude able assets, plus homestead, plus personal property, plus a burial reserve, plus an automobile and set up certain burial space agreements for children, their spouses. brothers, sisters and their spouses, etc. pursuant to strict rules set forth in an Administrative Directive issued in July, 2011, which must be carefully followed. You can protect a substantial amount of your assets if burial space agreements for family members are used correctly. Interest on burial accounts is also exempt for Medicaid purposes.


                    2. While the Community Spouse Resource Allowance (CSRA) can be as high as $119,220 for seniors with a large amount of assets, this higher CSRA results in  the payment of more of your assets for nursing home costs.

It is important to understand that under New York law:

                    1. A spouse is charged with legal responsibility for the other spouse's nursing home costs. This means that the income and resources of the healthy spouse referred to as the "community spouse" are considered as available to the Medicaid applicant spouse who is going into a nursing home and will be considered in determining if that spouse qualifies for Medicaid, and

                    2. If the healthy or community spouse has assets in excess of $74,820, those excess assets must be spent on medical care until the healthy spouse's assets are down to $74,820, and

                    3. If the healthy spouse's monthly income is more than $2,980.50 per month, the local Social Services Department will normally require 25% of the excess income to be spent on the nursing home costs of the spouse in the nursing home.

                    4. If the total income of both spouses does not exceed $2, 980.50 per month, all of the total income can go to the healthy spouse, even if their spouse is in a nursing home. 

                    5. The healthy spouse can refuse to support the spouse in the nursing home, but then the Department of Social Services has the right to sue the healthy spouse to recover money it pays for the nursing home costs of the spouse in the nursing home. Doing what is called a "spousal refusal" may make sense in certain situations because the Medicaid rate is less than the private pay rate.  

          5. Q. HOW MUCH INCOME CAN I MAKE AND QUALIFY FOR MEDICAID

              A. Any person over 64 whose net income is less than $825  per month, plus an unearned credit income credit of $20 per month ($1,209 for a couple) per month plus an unearned income credit of $20 per month, has satisfied the income means test for SSI related Medicaid. A single individual residing in a nursing home is permitted only $50 per month as a personal needs allowance, plus assets of $14,850 ($21,750 for a couple) plus a burial reserve. You can set up a trust with a funeral director to prepay funeral expenses and the money in the trust will not be counted as a resource for Medicaid as long as any money not spent on the funeral is turned over to the Medicaid upon the senior's death. Caution, at the current time, only the cost of the vault, burial container, opening and closing of the grave, plot, stone and casket are treated as exempt for the community spouse, as opposed to the Medicaid applicant. (Car and personal residence may be exempt.) The law provides that the spouse of an individual who has established his or her eligibility for Medicaid is entitled to a monthly income not to exceed $2,980.50 per month. See the 2016 Resource and Income Limits:

          6. Q. CAN I TRANSFER MY ASSETS TO MY CHILDREN OR OTHER FAMILY MEMBERS JUST BEFORE I GO INTO A NURSING HOME?

              A. L
AW IN EFFECT AFTER FEBRUARY 8, 2006. There is a new law in effect after February 8th, 2006 that will change previous law drastically. The bottom line is that under the new law there is a five year look back period and any assets transferred within 5 years of you going into a nursing home and making a Medicaid application will disqualify you from receiving Medicaid until that penalty period has run. Under the old law before February 8th, 2006, there was a Thirty Six Month Rule (applicable to outright transfers) and a Sixty Month Rule (applicable to certain transfers in trust). Eligibility for medical benefits is denied for a period of time if the person going into the nursing home transferred assets for less than fair market value within thirty six or sixty months before his or her application for Medicaid benefits. Under the old law which applies to transfers made before February 8, 2006, the period of ineligibility begins the first day of the month following the month in which the resources were transferred and lasts for a number of months equal to the total value of the transferred property divided by the average cost of nursing home care to a private patient in that region of the state. (Currently $9,252 per month in central New York State and higher in other areas of New York).  2016 Medicaid Regional Rates which must be used to determine a transfer penalty period for coverage of nursing facility services.

             Under the new law, the penalty period doesn't start to run the first day of the month after the month of the transfer, it starts to run much later, in essence, the penalty period starts to run on the date you are both: 1. in the nursing home and 2. would otherwise qualify for Medicaid, if you hadn't made the transfers. So any transfers within 5 years of applying for Medicaid result in a penalty period preventing you from qualifying for Medicaid, calculated by taking the amount you transferred within 5 years and dividing it by $9,252 (in central NY). ********* UNDER THE NEW LAW ASSETS YOU TRANSFER 5 YEARS BEFORE YOU GET SICK CAN RESULT IN DISQUALIFICATION FOR MEDICAID!!! Under certain limited circumstances, some recent fair hearing decisions allow gifts within the 5 year look back period to avoid creating a penalty period.  Note: yours facts may allow gifts within the 5 year period to be treated as gifts not made for the purpose of qualifying for Medicaid, if you fit under the facts of these recent fair hearing decisions.   

       
Under the Medicaid transfer rules, certain resources and transfers are exempt. A home is exempt if transferred to one of the following:

                    1. a spouse,
                    2. a minor (under 21 child), or a blind or disabled child of the Medicaid applicant,
                    3. a brother or sister with an equity interest in the home who resided in the home one year before institutionalization,
                    4. a son or daughter who resided in the home two years and provided care that kept the Medicaid applicant from being institutionalized,
                    
Certain other transfers of any resource are also exempt. For example: a transfer is exempt if the resource was transferred to a spouse or to another for the sole benefit of the spouse, or to a disabled child. A recent fair hearing decision held that a transfer of a residence to a trust established solely for the benefit of the disabled child would not qualify for this exemption and that the house had to be transferred directly to the disabled child.

           7. Q. DOES IT MAKE A DIFFERENCE WHEN I APPLY FOR MEDICAID?
 
               A. Extreme caution  must be used is deciding when to file the Medicaid application, because there is no longer a "cap" on the waiting period equal to the look back period. If you apply for Medicaid too soon after a transfer, you may create a penalty period or period of ineligibility for Medicaid longer than 60 months. This means that if you apply one day too early, you could be prevented from qualifying for Medicaid for 5 or 10 years or more. If you applied at the appropriate time, which could be one day later, you could qualify immediately for Medicaid! What a difference a day can make?  

          8.  Q. WHAT CAN BE DONE IF THE SENIOR IS ALREADY IN A NURSING HOME?

               A.
If the senior is already in a nursing home or about to go into one, he or she can retain enough assets to pay for sixty months care, transfer the balance and not apply for Medicaid until sixty months after the date on which the last asset transfers are completed. If the assets total less than the cost of 60 months of care, no transfers will help you. However use of a gift and promissory note between a senior and a family member, usually a child, can avoid the harsh new 5 year rule as discussed below under question 9.

          9.  Q. HOW CAN I AVOID THE NEW FIVE YEAR RULE ON GIFT TRANSFERS AFTER FEBRUARY 8, 2006?

               A.
One technique to avoid the new harsh 5 year rule on gift transfers after February 8th, 2006 is the use of a "Service Contract" between the senior and a child or other family member.

Most children help their mom and dad in numerous ways as they age by performing the services of a Geriatric Care Manager. It is very common for a child to handle their parents' finances if the parents become unable to handle their own finances by becoming their parents' Power of Attorney. These duties often include paying bills, reviewing mail, dealing with the parents' banker, lawyer, tax return preparer and financial planner. In addition, most children manage their parents' health care as their Health Care Proxy by taking their parents to the doctors, communicating with the doctors, hospitals, social workers and home health care aides. Many times the children arrange for supervision of the parents by home health care aides and visit their parents on a regular basis whether at home and during hospital visits.  Many children also provide home care services themselves for their parents.

These valuable services are usually provided free of charge because of the love and affection we have for our parents. That presumption can be over come under certain court decisions, Administrative Directives and fair hearing decisions. Seniors can actually hire their children to provide these services on a contractual basis and pay the children substantial amounts of money to perform these Geriatric Care services. If the "Service Agreement" is properly drawn, meets all of Medicaid's legal requirements and is substantiated per Medicaid rules, then money paid to children for documented services pursuant to a binding written agreement entered into at the time of the rendition of the services the "Service Agreement" can completely avoid the new harsh 5 year rule and those payments can be protected immediately upon payment to the children without any penalty period imposed. Extreme caution should be used when employing this technique because DSS will disallow the use of service agreements when parents are in a nursing home. The use of a service agreement should only be considered if a parent is not in a nursing home.

           Please note that the New York State Department of Health has issued a ruling that it will give credit for amounts paid to children for certain services rendered under a  service agreement entered into prior to entry into a nursing home, which means these payments will be allowed and not treated as a gift transfer, thus escaping the 5 year rule. http://www.health.ny.gov/health_care/medicaid/publications/docs/gis/07ma019.pdf

I have won favorable fair hearing decisions using this technique, which has protected a substantial amount of money and avoided the 5 year rule for compensation for services rendered to parents prior to entry into a nursing home. It makes sense because the children are in fact providing valuable services to the parents anyway. This is an excellent planing tool that I recommend if used properly.    

Another technique used in an emergency, where little or no planning has been done, is the use of a gift and a promissory note, where a parent makes a gift transfer of money to a child and then loans the child money that will be repaid to the parent over a short period of time. Without going into detail, the bottom line is that if done properly, about 1/2 of the parents assets can be protected in this type of emergency planning, sometimes much more. There have been three Fair Hearing Decisions out of Albany County that have allowed this planning technique and I have used it on a regular basis to protect substantial assets.

The key is planning and with proper planning there are avenues to use that can avoid the imposition of the new 5 year rule. Of course that depends on the facts of your situation, but without proper planning, assets transferred by gift within 5 years of entering a nursing home will usually result in disqualification from receiving Medicaid for a certain period of time, which usually can be financially devastating to the senior and their family.

          10. Q. WHY SHOULD I USE A TRUST TO PROTECT MY ASSETS?
 

                A. Assets are usually transferred to children or other family members either outright or in trusts. A trust is more desirable than an outright transfer to a child for many nontax and tax

reasons, because:

                   a) You may have a bad relationship now or in the future with: 

                         1.  your child or

                         2.  your son-in-law or daughter-in-law
     
                   b) Your child may:

                           1. get divorced or pass away. Note: If your child gets divorced or passes away, your assets may end up going to your son-in-law or daughter-in-law and not your grandchildren.
                           2. have creditors or go bankrupt resulting in liens being placed against your house or other assets transferred to your child.
                           3. invest your assets unwisely
                           4. spend all of your assets during your life
                           5. spend all of your assets as soon as you die.
                           6. get sick and run up large uncovered medical bills   


A trust can avoid all of the problems created by the above situations

                   c) If you transfer your home to your children and then sell your home in the future during your lifetime, your children will pay what is often a substantial capital gains tax on the difference between what you paid for your house when you bought it and what you sold the house for. You can reduce this tax somewhat, if you can prove you made certain capital repairs to the house like a new roof, new heating system, structural repairs, etc., but my experience is that quite often your children will not be able to produce the cancelled checks or paid receipts to prove you made those repairs to the home and they will be unable to reduce that tax. :(

However: If you place your home into an irrevocable trust that is a "grantor trust" for federal income tax purposes, in addition to protecting your house from nursing home costs and avoiding probate, Section 121 of the Internal Revenue Code will apply and you can have your home sold completely tax free during your lifetime, avoiding the capital gains tax that would have been paid by your children if you had transferred the house to your children, instead of to a trust for the benefit of your children. :)

Your lawyer must have a thorough working knowledge of the tax law if you are doing Medicaid Planning or probate avoidance!
I had lunch this week with a CPA who told me that a lawyer drew a trust that left the children stuck with a $200,000 capital gains tax that could have been totally avoided and when the CPA told the lawyer this, the lawyer told the CPA: "well I don't know anything about taxes!" :(

 Your lawyer needs to know the federal and state, estate, gift and income tax consequences of every recommendation they are making to you!   


11. Q. IF I SET UP A TRUST SHOULD I HAVE ACCESS TO PRINCIPAL?

       A. No. The Trustee should not be given discretion to distribute income or principal to the grantor Medicaid applicant. If you have access to the principal of a trust, it is considered an "available resource" for Medicaid purposes. If you have access to the income of the trust, it is considered an "available resource" for Medicaid purposes. With the right planning, you should only transfer resources you don't need to live on to the trust and should retain sufficient assets to pay for all of your income needs during your life, so you can maintain the same standard of living for the rest of your life. I can really help you with this planning and with the right planning, your life won't change a bit, but you will protect all of your assets that you wouldn't otherwise spend during your lifetime.

 


12.  Q. HOW CAN I PROTECT MY HOUSE?

       A. Transfer of residence - if the Medicaid applicant is married, he or she may retain a principal residence in which a spouse resides. The house is exempt property. However, if the applicant does not have a spouse or the spouse dies and other requirements are not met (which generally won't be met), the house is not exempt property and is subject to nursing home costs and will preclude Medicaid qualification. The Department of Social Services can file a lien against your personal residence.

A transfer of the residence to the children or to an irrevocable trust for the children, with the parent reserving a life estate has usually been advisable. This transfer to the children or to a trust for the children would  completely protected the house from nursing home costs and uncovered medical expenses after the 5 year look-back period. Nothing really changes, the parent would keep the Star Exemption, Senior Citizen's Exemption and Veteran's Exemption. The parent would still pay for all of the taxes, repairs and insurance, but if they got sick, they wouldn't lose the house. They also gained the extra benefit of avoiding probate on the house at the time the parent passed away which means getting the house to the children without the legal fees, costs and delays of probate. The value of the life estate might still be at risk during the parent's life, but only if the house is sold while the parent was in a nursing home. If the house isn't sold during the parents' lifetime, the life estate expires on the parents' death. The retained life estate insures that the children would receive a "step up in basis" on the parent's death, which enables the children to sell the house income tax free on the parent's death and 100% of the value of the house is protected.

A transfer of the house to the children as opposed to a trust for the children is not advisable for the non tax and tax reasons discussed in Question 10 above.

 
13. Q.  SHOULD I ALLOW THE NURSING HOME TO FILE A MEDICAID APPLICATION FOR ME? 

      A. The answer to this question is almost always no.  I routinely meet with clients who say that they have met with the nursing home and the nursing home has specifically advised them that they do not need a lawyer, that they must file for Medicaid immediately and that they don't need to worry, the nursing home will take care of everything and file a Medicaid application for them.

In my opinion that this is a formula for disaster in many cases.  First of all, when anyone tells you that you don't need a lawyer to protect your legal rights, your antenna should go up.  Clearly, filing a Medicaid application and protecting your assets from being wiped out by nursing home costs and uncovered medical expenses involves many legal issues, analysis and many choices that you should make under the guidance of a skilled Elder Law Attorney who concentrates his or her practice in the area of Elder Law.

In my opinion, I humbly submit that nursing homes that give the above advice to nursing home residents and their families, are clearly doing them a disservice. You must understand that there is a clear conflict of interest between the nursing home and its residents. The nursing home is concerned about its own financial well-being. In New York State, the private pay rate, the rate at which you would pay the nursing home out of your own assets is higher than the Medicaid rate, the rate at which Medicaid would pay the nursing home if you were on Medicaid.  Stopping there, we see that it is clearly in the best interests of the nursing home that you not be qualified for Medicaid until all of your assets are completely exhausted. The nursing home just gets more money if you are not on Medicaid. The nursing home is in the business of taking care of its own financial concerns and not protecting your assets from being used to pay the nursing home bill.  That in and of itself should let you know that you should not rely upon the nursing home to give you any type of advice with regard to the filing of a Medicaid application. The nursing home is not going to advise you of the various legal options that you can use to protect your assets from being wiped out to pay for nursing home costs and uncovered medical expenses as you have seen in this article.  In fact, I have seen several situations where nursing homes have applied for Medicaid and the application was denied because incomplete documentation was submitted by the nursing home or the family or the nursing home resident was not even eligible for Medicaid.

The documentation required to be submitted to Medicaid is quite extensive.  If you fail to provide any single piece of that information to Medicaid or if the nursing home fails to provide that information on your behalf, you can expect a denial which results in a personal liability on the part of the nursing home resident to private pay the nursing home bill. I have seen several instances where nursing homes have filed an application for Medicaid which was subsequently denied and then the nursing home simply tells the family you must pay the bill now out of your own assets. You might say what if my mom or dad has no assets and there is nothing to protect, should I let the nursing home file a Medicaid application for me.  The answer to that question is only if the application is going to be granted.

I was recently retained by a daughter whose mother had absolutely no assets.  She was told by the nursing home that they would file the nursing home application and gave her a list of documents that she needed to provide to the nursing home to apply for Medicaid.  She explained to the nursing home that her mother was totally unable to communicate with her due to her mom’s Alzheimer's.  There was no power of attorney and the daughter was not legally authorized by the mother to obtain any documents and mom could not execute a power of attorney. The bottom line is that the daughter came to me because the nursing home sent her a $60,000 bill after the mother passed away and was telling the daughter that she needed to pay that bill. The nursing home also threatened to sue the daughter, her sister and her sister's husband.

Getting a nursing home to help you file a Medicaid application makes about as much sense as getting your tax advice from the Internal Revenue Service. When you file a Medicaid application, if it is granted, it goes retroactive back to 90 days prior to the date of filing the application.  If the nursing home filed an application for you and fails to submit the appropriate documents or you don't qualify in the first place and Medicaid takes a long time to deny the application, you will have a private pay liability from the date of entry into the nursing home forward.  Even if you do get legal assistance after the denial and the application is filed immediately after the denial, it will only go back 90 days prior to the date of the filing of the second application, leaving a potential private pay gap for which the nursing home resident is personally liable to pay.

It makes sense to get some legal advice from a qualified professional when you need a Medicaid application filed. I have seen several examples where nursing homes have  pressured the children of nursing home residents to file for Medicaid immediately, even though they obviously did not qualify for Medicaid at the time.

The bottom line is that protecting your assets from uncovered medical expenses and nursing home costs requires the skill of qualified professional who is knowledgeable in this area of law and is your advocate looking out for your best interests, not the nursing homes. In my opinion, the nursing home does not meet those requirements.

14. Q. IS MY ANNUITY AND IRA PROTECTED FROM MEDICAID?

     A. The technique of a single person annuitizing the Annuity or taking monthly payments for the annuity over their life time, should be considered at the current time. A married person going into a nursing home can transfer their annuity to their healthy spouse, annuitize the annuity and avoid the annuity from being considered an available resource. CAUTION: if your non qualified annuity was purchased after 2/8/2006, or if you made contributions to a non qualified annuity after 2/8/2006, special rules apply under the Deficit Reduction Act (DRA) that require Medicaid to be made the beneficiary of your annuity. If you purchased an annuity after 2/8/2006 and go on Medicaid to pay for your nursing home costs, you will most likely have to cash in the annuity to protect it which may cause you to incur a sliding scale withdrawal charge of anywhere between 1 to 10%, plus tax on all accrued income. :( 
 
15. Q. CAN MY CHILDREN EVER BE HELD LIABLE FOR MY NURSING HOME COSTS IF I LEAVE NY AND GO TO LIVE IN THE SAME STATE AS MY CHILDREN?
 
      A. YES!!!!!!! While NY has no such law, 29 other states have what are called filial responsibility laws that can make your children liable for your nursing home costs. :( Check these links for more information and to see if your child lives in a state with a filial responsibility law that could hold your child liable for your nursing home costs if you move to their state:
     http://www.forbes.com/sites/northwesternmutual/2014/02/03/who-will-pay-for-moms-or-dads-nursing-home-bill-filial-support-laws-and-long-term-care/

     http://law.psu.edu/_file/Pearson/FilialResponsibilityStatutes.pdf?_sm_au_=isVnJnDqDRn06Vfs

     For an example, see this Pennsylvania case:  Presbyterian Medical Center v Budd decided 8 29, 2003  http://caselaw.findlaw.com/pa-superior-court/1013360.html
 

16. Q. WHAT ARE THE MOST IMPORTANT FINANCIAL STATEMENTS MUST I PROVIDE TO MEDICAID WHEN I APPLY? 

      A. The documentation that must be provided to Medicaid when an application is submitted is simply voluminous and failure to provide even one page of one financial statement on one account in the past 60 months can result in a denial of your Medicaid application, resulting in a denial of Medicaid benefits and you private paying for all nursing home costs. Failure to provide and explain each and every check, cash withdrawal, deposit and expenditure over $1,000 over that past 60 months can result in the imposition of a penalty period delaying Medicaid eligibility, resulting in a private pay liability on your part. I cannot stress enough the importance of keeping all of your financial statements on all of your assets, including but limited not to bank accounts, CDs, stocks, mutual funds, brokerage accounts, IRAS, annuities, life insurance policies, 401ks, 403b's, deferred comp plans, 457 plans, profit sharing plans, savings bonds, 529 plans, etc. If you are missing even one page from any of these statements over the past 60 months, your application can be denied. :(   If you fail to explain one check, one cash withdrawal, one deposit over $1,000 in the past 60 months, your application can be denied or your eligibility delayed and a penalty period imposed, resulting in your being liable to private pay your nursing home costs. :) KEEP ALL OF YOUR RECORDS AND STATEMENTS ON EVERY ACCOUNT AND ASSET YOU HAVE FOR 5 YEARS!!!! DONT THROW THEM AWAY! GETTING THEM FROM YOUR BANK OR BROKER OR INSURANCE COMPANY, ETC., MAY TAKE MONTHS, WHICH CAN RESULT IN DENIAL OR DELAY OF YOUR APPLICATION, COSTING YOU BETWEEN $8,500 TO $10,000 PER MONTH AT CURRENT RATES. :(

 

17. Q. IF I HAVE A JOINT BANK ACCOUNT WITH MY CHILD THAT WAS SET UP MORE THE 5 YEARS AGO IS ONE HALF OF IT PROTECTED?

       A. NO. The general rule
is that if you have a joint bank account, or joint stock or joint mutual fund or joint brokerage account with a child and you contributed 100% of the money in that account, then you are treated as the owner of the assets in the account and they are your "available resources" for determining Medicaid eligibility. The rule is that no gift to your child is made until your child actually withdraws money or other assets from that account. The exception to that rule is that if you can't pull money out of that account without your child's signature, then one half of those funds may be protected if set up prior to the 5 year look back period.

 
            If you are a New York resident, I am available to explore protecting your assets from nursing home expenses and uncovered medical expenses as well as other estate planning matters in greater detail with you. I offer a free initial office conference for New York residents to discuss your particular situation.

Please feel free to give me a call at (315) 733-0417 to schedule an appointment.

Warmest personal regards 
 

Dick
 
D. Victor Pellegrino



PLEASE NOTE THAT THIS DOCUMENT IS NOT MEANT TO GIVE LEGAL ADVICE, BUT ONLY TO ANSWER CERTAIN FREQUENTLY ASKED QUESTIONS CONCERNING HOW TO PROTECT ASSETS FROM BEING WIPED OUT TO PAY FOR NURSING HOME COSTS. YOU ARE STRONGLY URGED TO CONSULT WITH AN ATTORNEY WHO IS COMPETENT IN THE AREA OF ELDER LAW, TAX AND ESTATE PLANNING PRIOR TO TAKING ANY STEPS TO PROTECT ASSETS SO THAT YOU WILL UNDERSTAND ALL OF THE RAMIFICATIONS OF YOUR ACTIONS, INCLUDING BUT NOT LIMITED TO ESTATE TAX, GIFT TAX, INCOME TAX, FINANCIAL AND ESTATE PLANNING CONSIDERATIONS.

 

CAUTION: WARNING AND DISCLAIMER

THE MATERIALS AND DISCUSSIONS PRESENTED IN THIS COURSE ARE INTENDED FOR EDUCATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO CREATE AN ATTORNEY CLIENT RELATIONSHIP OR CONSITUTE LEGAL ADVICE.

PRIOR TO DOING ANY ESTATE PLANNING OR ATTEMPTING TO IMPLEMENT ANY OF THE STRATEGIES OR TECHNIQUES COVERED AND DISCUSSED IN THIS COURSE, YOU ARE STRONGLY CAUTIONED TO SEEK THE ADVICE OF YOUR OWN COMPETENT ELDER LAW ATTORNEY ADMITTED TO PRACTICE LAW IN THE STATE OF NEW YORK, WHOSE PRACTICE IS CONCENTRATED IN THE AREA OF ELDER  LAW.

 

CLASS OUTLINE FOR ADVANCED MEDICAID PLANNING

                     WHEN YOU HAVE LESS THAN 5 YEARS BEFORE NURING HOME

CLASS 1.     A. USE OF THE SERVICE AGREEMENT (CAREGIVER AGREEMENT)

                       B. USE OF THE REVERSE MORTGAGE TO PROTECT AS MUCH OF THE EQUITY OF THE HOUSE AS POSSIBLE

CLASS 2.    A. PURCHASE OF LIFE ESTATE IF SENIOR MOVES IN W/CHILD

                     B. COMMUNITY MEDICAID TO GET YOU THROUGH THE FIVE    

                           YEAR PERIOD

                     C. USE OF A POOLED INCOME FUND SHELTER INCOME TO QUALIFY FOR COMMUNITY MEDICAID

                      

                    WHEN NURSING HOME PLACEMENT IS IMMINENT

CLASS 3.    A. TRANSFERS TO SPOUSE AND SPEND DOWN OF ASSETS

                     B.  USE OF GIFT AND PROMISSORY NOTE TECHNIQUE

                     C.  BURIAL SPACE AGREEMENTS

                     D.  TRANSFER OF RESIDENCE TO CARE TAKER CHILD

                     E.  TRANSFER OF ASSETS OTHER THAN HOUSE TO SNT

                     F.  TRANSFER OF HOUSE TO SPECIAL NEEDS CHILD

  CLASS 4.    A. PROTECTING IRAS AND ANNUITIES

 

 

DR. I WANT YOU TO DELIVER MY BABY BUT:

<> I KNOW YOU’RE A FOOT DOCTOR AND DON’T  

     SPECIALIZE IN DELIVERING BABIES, BUT I DON’T MIND   

    THAT, AFTER ALL DELIVERING A BABY CAN’T BE THAT    

     DIFFICULT, MY WIFE IS GOING TO DO MOST OF THE  

     WORK

<> I WANT YOU TO KEEP IT SIMPLE. I WANT THE SIMPLEST

     AND CHEAPEST DELIVERY POSSIBLE.

<> I DON’T WANT YOU TO CONSIDER WHAT PROBLEMS

     YOU MIGHT RUN INTO DURING THE DELIVERY.

<> I FEEL LUCKY, I’LL ROLL THE DICE AND TAKE MY    

     CHANCES.

<> I WAS GOING TO DOWNLOAD HOW TO DELIVER MY   

     BABY FROM THE INTERNET AND I STILL MAY SO WHAT     

     DO YOU SAY?

     75 BUCKS AND WE HAVE A DEAL.   J

<> THAT WOULD HAVE BEEN A MISTAKE ON MY PART.

 

 

WOULD YOU SAY TO YOUR LAWYER

I WANT YOU TO DO MY WILL AND I DON’T WANT ANY OF THAT FANCY OR COMPLICATED ESTATE PLANNING STUFF. DON’T NEED IT, DON’T UNDERSTAND IT, DON’T WANT TO.

I KNOW YOU MAINLY DO DIVORCES OR CRIMINAL LAW OR TRAFFIC TICKETS OR DWIS OR NEGLIGENCE OR MEDICAL MALPRACTICE OR FAMILY COURT OR REAL ESTATE OR A LITTLE BIT OF EVERYTHING AND DON’T SPECIALIZE IN ESTATE PLANNING, WHATEVER THAT IS OR MEDICAID PLANNING, BUT I DON’T MIND THAT. BESIDES I’M NOT WEALTHY, I DON’T HAVE MUCH AND I DON’T MIND IF I LOSE WHAT I HAVE. THAT’S OK.

AFTER ALL DOING AN ESTATE PLAN CAN’T BE THAT DIFFICULT.

I WANT YOU TO KEEP IT SIMPLE. I DON’T WANT ANYTHING COMPLICATED.

I WANT THE SIMPLEST AND CHEAPEST PLAN POSSIBLE.

I DON’T WANT YOU TO CONSIDER WHAT PROBLEMS OR EXPENSES MY SPOUSE OR KIDS MIGHT RUN INTO IF I GET SICK OR HOW I CAN AVOID THOSE PROBLEMS OR EXPENSES. I REALLY DON’T CARE.

I DON’T CARE HOW MUCH MY SPOUSE OR KIDS LOSE TO NURSING HOME COSTS OR UNPAID MEDICAL BILLLS.

I FEEL LUCKY, I’LL ROLL THE DICE AND TAKE MY CHANCES.

I WAS GOING TO DOWNLOAD HOW TO PLAN MY OWN ESTATE FROM THE INTERNET AND I STILL MAY DO THAT SO WHAT DO YOU SAY?

              75 BUCKS AND WE HAVE A DEAL.   J

IF THAT IS WHAT YOU TELL YOUR LAWYER, THAT MIGHT  BE A MISTAKE ON YOUR PART.

 

 

FACTS ABOUT ALZHEIMER’S DISEASE

<>  Approximately 5.2 million Americans have Alzheimer's disease.

<>  In Central New York there are approximately 45,200 people  

      with Alzheimer's disease

<>  An estimated 16 million Americans will have Alzheimer's      

      disease  by 2050 unless a cure or prevention is found.

<>  One in 8 persons over 65 and nearly one half of those over 85      

       have  Alzheimer's disease.

<>   A person can live up to 20 years from onset of symptoms of       

       Alzheimer's disease.

<>   Alzheimer’s disease eventually renders a person totally        

       incapable of  caring for themselves.

<>   Approximately one out of two seniors over 65 spends some                                     

       Time in a nursing home, which can cost approximately $8,500    

        - $11,500  a month.

<>    One in three seniors dies with Alzheimer's or other dementia.

 

 

THESE STATISTICS DON’T INCLUDE:

                - STROKES

                - FALL DOWNS CAUSING BROKEN OR    

                 -FRACTURED HIPS

                - LOU GEHRIGS DISEASE

                - PARKINSON’S DISEASE

                - HEART AND LUNG DISEASES

                - BLINDNESS

                - OTHER DISEASES THAT MAKE IT UNSAFE    

                   FOR A SENIOR TO LIVE ALONE

 
 

 

TRANSFERS FOR MEDICAID PURPOSES

 CREATES A PENALTY PERIOD

When a Medicaid applicant  or their spouse makes a prohibited transfer, but is otherwise eligible for Medicaid, a penalty period is imposed.

During this penalty period, the Medicaid applicant  will not be eligible for nursing facility services.

Example:

                In central NY amount of transfer divided by $9,252 a month

               $50,000 transfer/9,252 = 5.4 month penalty period

 

THE FIRST PLANNING TECHNIQUES WE WILL DEAL WITH ARE

SOME PLANNING TECHNIQUES THAT CAN BE USED:

WHEN A SENIOR HAS LESS THAN 5 YEARS BEFORE A ENTERING    

                A NURSING HOME

YOU NEVER KNOW FOR CERTAIN HOW LONG THE SENIOR HAS BEFORE ENTERING A NURSING HOME

IF THE SENIOR IS HEALTHY AND YOU THINK YOU MAY HAVE 5 YEARS OR MORE

UNDER CURRENT LAW, YOU CAN TRANSFER ASSETS TO PROTECT THEM.

AFTER 5 YEARS, IF DONE RIGHT, THE ASSETS ARE PROTECTED.

THIS CLASS WILL DEAL WITH  PLANNING WHEN A SENIOR HAS

LESS THAN 5 YEARS BEFORE A ENTERING A NURSING HOME

OR WHEN THE SENIOR IS ABOUT TO ENTER A NURSING HOME VERY SOON

 

 

USE OF SERVICE AGREEMENT (CAREGIVER AGREEMENT)

1. WRITTEN AGREEMENT BETWEEN A PARENT AND CHILD/CHILDREN    

    WHICH MEETS CERTAIN LEGAL REQUIREMENTS

2. FOR FAMILY MEMBERS, USUALLY CHILDREN, TO PROVIDE PERSONAL    

    OR FINANCIAL MANAGEMENT SERVICES TO PARENTS FOR   

    COMPENSATION. COMPENSATION IS TAXABLE TO CAREGIVER.

    CONSIDER IRA TO SHELTER TAXABLE INCOME.

3. USED TO REDUCE THE PARENT’S ASSETS TO QUALIFY FOR MEDICAID

    CURRENTLY $14,580 FOR A SINGLE PARENT 

4. TO COMPENSATING CHILDREN FOR SERVICES TO PARENT EVEN IF THE

    SERVICES WERE PROVIDED FREE OF CHARGE IN THE PAST

5. THE ISSUE IS WHETHER THE PARENT WILL RECEIVE FAIR MARKET   

     VALUE FOR THE MONEY THEY PAY TO THE CHILDREN.

6. IF NOT, THEN A GIFT TRANSFER CREATES A PENALTY PERIOD

 

 

REQUIREMENTS FOR A SERVICE AGREEMENT

     1.    THE CONTRACT MUST BE IN WRITING AND MUST PROVIDE FOR THE RETURN OF PREPAID MONEY IF       CAREGIVER BECOMES UNABLE TO FULFILL THE AGREEMENT OR PARENT DIES.

     2. SERVICES CAN’T BE PROVIDED ON AN “AS NEEDED “ BASIS

     3. SERVICES CAN’T BE RENDERED IF PARENT IS IN A NURSING HOME

     4. THER MUST BE CREDIBLE DOCUMENTION: A LOG WITH THE DATES    

           AND HOURS OF SERVICES PROVIDED.  NO LOG, THEN A GIFT

     5. WAGES ARE MEASURED BY US DEPARTMENT  OF LABOR STATISTICS      

http://www.bls.gov/oes/current/oes_46540.htm#31-0000

    CURRENTLY ABOUT $14 PER HOUR. WAGES ARE TAXABLE,

PLANNING TIP: CHILD SHOULD CONSIDER USING AN IRA TO OFFSET INCOME TAX ON WAGES PAID TO CHILD.

 

 

 Source:

 BUREAU OF LABOR STATISTICS OUTLOOK HANDBOOK

                WWW.BLS.GOV/OOH/HEALTHCARE/PERSONAL-CARE-AIDES.HTM#TAB-2 

 WHAT PERSONAL CARE AIDES DO

 DUTIES:

 <> Care for and assist clients with cognitive impairments, sucxj as Alzheimer’s or mental Illness

 <> Provide companionship bt talking to, playing games with or going for walks weith clients

 <> Help clients with tasks related to hygiene, such as bathing, brushing teeth, and        

           going to the bathroom

 <> Help transfer clients from a bed to a wheelchair or vice versa

 <> Complete housekeeping tasks, such as changing bed linens, washing dishes,   

       and cleaning living areas

<> Help prepare and plan meals

 <> Organize a client’s schedule and plan appointments

<> Arrange transportation to doctors’ offices or to the store

<> Help clients pay bills or manage money

<> Shop for personal items and groceries

Source:

BUREAU OF LABOR STATISTICS OUTLOOK HANDBOOK

WWW.BLS.GOV/OOH/HEALTHCARE/HOME-HEALTH-AIDES.HTM#TAB2

 

 

WHAT HOME HEALTH AIDES DO: DUTIES:

HOME HEALTH AIDES TYPICALLY DO THE FOLLOWING:

 

<> Help clients in their daily personal tasks, such as bathing or dressing

Provide basic health-related services according to a client’s needs, such

                as checking vital signs or administering prescribed medication at scheduled times

<>  Do light housekeeping, such as laundry, washing dishes, and vacuuming in a client’s home

<> Organize a client’s schedule and plan appointments

<> Arrange transportation to doctors’ offices or for other kinds of outings

<> Shop for groceries and prepare meals to a client’s dietary specifications

<> Provide companionship

 

 

PROBLEM:

                SENIOR OWNS THEIR OWN HOME

                NO ESTATE PLANNING HAS BEEN DONE TO PROTECT HOME

                SENIOR HAS VERY LITTLE CASH SAVINGS

                SENIOR HAS VERY LITTLE PENSION AND SS INCOME THEY LIVE ON

                SENIOR MAY GO INTO A NURSING HOME WITHIN 5 YEARS

                               AND NOW WANTS TO PROTECT THE HOME

                IF THEY TRANSFER THE HOME NOW, IT CREATES A 

                              PENALTY PERIOD AND RESULTS IN A LIEN BEING PLACED

                               ON THE HOME IF SENIOR GOES INTO THE NURSING HOME

                               WITHIN 5 YEARS

                SENIOR WANTS TO PROTECT AS MUCH OF THE VALUE OF

                               THE HOME FROM NURSING HOME COSTS AS POSSIBLE

                HOME EQUITY LOAN WON’T WORK BECAUSE SENIOR  CAN’T

                                MAKE CURRENT MORTGAGE PAYMENTS BECAUSE

                                SENIOR’S INCOME IS NEEDED FOR LIVING EXPENSES

                SENIOR NEEDS CASH TO DO MEDICAID PLANNING TO PROTECT SOME OF THE EQUITY IN THE

HOME BUT HAS NONE

SOLUTION:

                USE OF A REVERSE MORTGAGE

 

 

How Does a Reverse Mortgage Work

A reverse mortgage, like a traditional mortgage, is a loan made by a lender to a homeowner using the home as security or collateral.

With a traditional mortgage, the bank may lend up to 90% of the property’s value to the homeowner and the bank expects the homeowner will use their income to pay down the debt over time.

The way a reverse mortgage works is the lender loans less and expects the reverse mortgage loan balance will grow over time because the homeowner is not making monthly mortgage payments.

A reverse mortgage loan generally does not require repayment until the last homeowner has passed away or moved out of the property. Consequently, life expectancy is a huge part of the lender’s Calculation of how much to lend. A 62 year old homeowner can borrow a substantially lower percentage of their property’s value than a 80 year old homeowner.

SENIOR SHOULD APPLY FOR REVERSE MORTGAGE NOW

IF SENIOR WAITS UNTIL THEY ENTER  NURSING HOME THEY CAN’T GET A REVERSE MORTGAGE BECAUSE BANK IS AFRAID OF MEDICAL EXPENSES, NURSING HOME COSTS AND MEDICAID LIEN GETTING PRIORITY OVER THEIR MORTGAGE

SENIOR DOESN’T HAVE TO DRAW DOWN THE MORTGAGE PROCEEDS FROM THE MORTGAGE UNLESS AND UNTIL THEY ENTER A NURSING HOME

JUST PRIOR TO ENTERING A NURSING HOME, THE MAXIMUM MORTAGE LOAN IS DRAWN DOWN FROM THE MORTGAGE LOWERING THE FAIR MARKET VALUE OF THE HOUSE BY THE VALUE OF THE LOAN, THEN THE HOUSE IS TRANSFERRED TO A TRUST FOR THE CHILDREN.

THEN THE MORTGAGE PROCEEDS ARE USED TO PAY SENIOR’S FUNERAL EXPENSES, BURIAL SPACE AGREEMENTS FOR THE CHILDREN AND SPOUSES AND THE BALANCE IS LOANED TO A CHILD IN A GIFT AND PROMISSORY LOAN TRANSACTION.  

 

 

 

PURCHASE OF A LIFE ESTATE

PROBLEM:           CLIENT HAS NO HOME, HOME MAY HAVE BEEN SOLD

                               OR HOME WAS TRANSFERRED MORE THAN 5 YEARS AGO

                               SENIOR MAY LIVE IN AN APARTMENT

                               SENIOR HAS MORE THAN $14,850 IN ASSETS

                               AFTER FUNERAL EXPENSES, BURIAL SPACE AGREEMENETS, ETC.,

               

SOLUTION:

SENIOR BUYS THE RIGHT TO LIVE IN A CHILD OR GRANDCHILD’S HOME FOR THE BALANCE OF THEIR LIFE

SENIOR MUST RESIDE IN THAT HOME FOR AT LEAST ONE YEAR AFTER DATE OF PURCHASE, OTHERWISE BE SUBJECT TO A PENALTY PERIOD

PURCHASE PRICE MUST BE  ACTUARIALLY CALCULATED BASED ON THE LIFE EXPECTANCY OF THE SENIOR AND THIS DEPENDS ON  HOW OLD THE SENIOR IS. THE YOUNGER THE SENIOR IS THE MORE THAT CAN BE PROTECTED, THE OLDER THE SENIOR IS THEN LESS CAN BE PROTECTED

YOUR LAWYER MUST RUN THE NUMBERS !!!

YOU MUST HAVE AN APPRAISAL!!!

 

EXAMPLE OF THE PURCHASE OF A LIFE ESTATE:

                MOM IS 75 YEARS OLD

                MOM GOES TO LIVE WITH DAUGHTER

                DAUGHTER’S HOUSE IS WORTH $200,000

                VALUE OF MOM’S LIFE ESTATE IS WORTH $38,154

                BASED ON AN IRC 7520 INTEREST RATE OF 2%

                AN ACTUARIAL FACTOR OF .19077 FROM TABLE S

                .19077 X $200,000 = $38,154, WHICH CAN BE PROTECTED 1  YEAR

                AFTER THE PURCHASE OF THE LIFE ESTATE WITHOUT

                A PENALTY PERIOD AND THUS AVOIDS THE 5 YEAR RULE

                BECAUSE ITS NOT A GIFT TRANSFER.

 

 

‚ÄčA POWER OF ATTORNEY WHICH CONTAINS SPECIFIC MEDICAID

AND ASSET PROTECTION LANGUAGE IS CRITICAL TO ENABLE USE OF ASSET

PROTECTION STRATEGIES BECAUSE A SENIOR 

MAY NOT BE ABLE TO SIGN DOCUMENTS THAT ARE USED 

TO IMPLEMENT ASSET PROTECTION STRATEGIES AND TECHNIQUES

 

ARTICLE 81 GUARDIANSHIP PROCEEDING

  

<>  IF THERE IS NO POWER OF ATTORNEY OR NO ASSET PROTECTION    

      POWERS

<>  YOUR FAMILY MUST HIRE AN ATTORNEY TO PETITION A   

      COURT TO APPOINT SOMEONE TO BE YOUR LEGAL GUARDIAN   

      AND HANDLE YOUR FINANCIAL AFFAIRS

<>  COURT APPOINTS A SECOND  ATTORNEY TO REPRESENT YOU

<>  COURT APPOINT A THIRD ATTORNEY AS A COURT

      EVALUATOR TO ADVISE THE JUDGE IF YOU REALLY NEED A GUARDIAN

<>  COURT CAN APPOINT A FOURTH ATTORNEY TO BE YOUR   

      GUARDIAN AND HANDLE YOUR FINANCIAL AFFAIRS AND

      NOT YOUR SPOUSE OR CHILDREN. L

<>  YOU PAY FOR ALL FOUR ATTORNEYS

       I HAVE SEEN THE 3 ATTORNEYS FEES AMOUNT TO OVER    

       $40,000.

 

 

DURABLE POWER OF ATTORNEY WITH A STATUTORY GIFT RIDER:

        <> APPPOINTS SPOUSE/CHILDREN OR SOMEONE YOU TRUST TO HANDLE YOUR                      

                FINANCIAL AFFAIRS IF YOU BECOME ILL

                             - PAYMENT OF BILLS

                             - INVESTMENT OF ASSETS

       <>  AVOIDS  LEGAL GUARDIANSHIP

       <>  GIVES POWER TO DO:

                             - MEDICAID & ASSET  PROTECTION PLANING

                             - INCOME AND ESTATE TAX PLANNING

                             - PROBATE AVOIDANCE PLANNING            

         <> MY POWERS OF ATTORNEY ARE 31 PAGES LONG 

 

PROBLEM:

SENIOR TRANSFERRED HOUSE AND SAVINGS  LESS THAN FIVE YEARS AGO

SENIOR HAS DEMENTIA OR OTHER HEALTH PROBLEM S & CAN NO LONGER LIVE ALONE

SENIOR WANTS TO STAY IN THEIR OWN HOME

SENIOR HAS MOUNTING  MEDICAL BILLS IN EXCESS OF THEIR INCOME 

SENIOR CAN’T AFFORD THE COST OF HOME HEALTH CARE AIDES

CHILDREN CAN HELP OUT SOME BUT CAN’T PROVIDE THE CARE SENIOR NEEDS

SOLUTION: COMMUNITY MEDICAID

 

 

COMMUNITY MEDICAID

WHEN SENIOR STAYS IN THE COMMUNITY (THEIR HOME) AND

NOT IN A NURSING HOME

COVERS:

                DOCTORS, DENTISTS, PRESCRIPTIONS

                HOME CARE SERVICES

                                PERSONAL CARE SERVICES, NURSING,

                                PHYSICAL OR  OCCUPATIONAL THERAPY, HOME HEALTH CARE AIDES, etc.

               

                HELPFUL WEBSITES:  

                http://www.health.ny.gov/health_care/medicaid/

                http://www.health.ny.gov/health_care/medicaid/#services

                http://www.estateandelderlaw.com/ep_pg2.htm

 

 

COMMUNITY MEDICAID

ELIGIBILITY REQUIREMENTS:

INCOME:

                IF SINGLE $825 PER MONTH

                IF MARRIED $1209

                WITH $20 PER MONTH DISREGARD ---NOTE IF YOU HAVE EXCESS INCOME, YOU CAN USE A     

                                                                                          POOLED INCOME TRUST TO SHELTER THAT EXCESS INCOME

                 
RESOURCES:

                IF SINGLE             $14,850

                IF MARRIED        $ 21,750

LOOK BACK PERIOD:      NONE J

PENALTY PERIOD:           NONE J

 

 

 

RESOURCES INCLUDE ALL PROPERTY:

                CASH

                MUTUAL FUNDS/STOCKS/BONDS

                REAL ESTATE

                LIFE INSURANCE

                ANNUITIES

                IRAS/401 (k)S/403 B’S/457 PLANS- MORE ABOUT THESE LATER

                COLLECTIONS/VALUABLES: COINS, STAMPS, CARS, ETC.

                           

                PERSONAL EFFECTS ARE EXEMPT

                ONE AUTO IS EXEMPT

                FUNERAL EXPENSES

                BURIAL SPACE AGREEMENTS FOR FAMILY MEMBERS ARE

                            EXEMPT/CHILDREN/CHILDRE’S SPOUSES, ETC.

                            MORE ABOUT THESE LATER

 

 

PROBLEM:  SENIOR IS GOING INTO NURSING HOME NOW

                                SENIOR HAS $100,000 OF EXCESS RESOURCES

                                 NURSING HOME COSTS $10,000 A MONTH

                                THE $100,000 WILL BE LOST IN 10 MONTHS

SOLUTION:         SENIOR USES A GIFT AND A PROMISSORY NOTE

LEGAL REQUIREMENTS:

                                1. THE NOTE MUST IN WRITING

                                2. THE REPAYMENT TERM MUST ACTUARILY SOUND

                                                LESS THAN THE  PARENT’S LIFE EXPECTANCY

                                3. PAYMENTS ARE IN EQUAL AMOUNTS DURING LOAN

                                                TERM WITH NO DEFERRAL OR BALLOON

                                4.  NO CANCELLATION OF LOAN BALANCE ON DEATH

 

 

EXAMPLE OF THE USE OF A GIFT AND PROMISSORY NOTE

PROBLEM:  - SINGLE SENIOR HAS $100,000 OF EXCESS RESOURCES

                        - NURSING HOME COSTS $10,000 A MONTH

                        - THE $100,000 WILL BE LOST IN 10 MONTHS

                        - SENIOR HAS SOCIAL SECURITY OF $1,000 A MONTH

                        - SENIOR HAS A PENSION OF $1,000 A MONTH                 

                1. SENIOR GIFTS $55,512 TO CHILD

                            THIS CREATES A PENALTY PERIOD EQUAL TO  

                             $55,512/$9,252 = 6 MONTH PENALTY PERIOD

                2. SENIOR LOANS CHILD $44,488

                                THE $44,488 LOAN IS REPAID OVER 6 MONTHS @ 6%

                              THE LOAN PAYMENT IS $7,544.96 PER MONTH

                3. SS $1,000 PLUS PENSION $1,000 PLUS NOTE PAYMENT=

                                 $9,544.96 PER MONTH WHICH IS LESS THAN THE

                                 $10,000 NURSING HOME BILL WITH BALANCE OF $455.04

                4. THE $9,544.96 A MONTH PAYS THE NURSING HOME BILL FOR

                                  THE SIX MONTH PENALTY PERIOD

                 5. MEDICAID KICKS IN MONTH 7 AND THE GIFT OF $55,512 LESS

                    $2,730.24 ($455.04 X 6)  OR $52,782 
IS COMPLETELY PROTECTED J

 

 

PROBLEM:  A MARRIED SENIOR IS GOING INTO NURSING HOME NOW

                        SENIOR HAS A HOME AND JOINT SAVINGS OF $100,000

                        NURSING HOME COSTS $10,000 A MONTH

                        SENIOR CAN ONLY HAVE $14,850

                        THERE ARE EXCESS ASSETS AND LIENS WILL BE    

                        PLACED AGAINST THE HOUSE  

                     

SOLUTION: TRANSFERS TO SPOUSE ARE EXEMPT TRANSFERS AND

                        WON’T CREATE A PENATY PERIOD

                        SENIOR TRANSFERS HOUSE TO SPOUSE

                        SENIOR CAN KEEP $14,850 AND TRANSFER BALANCE OF SAVINGS TO SPOUSE.

                        SPOUSE CAN HAVE $74,820 IN ASSETS NOT COUNTING THE HOUSE

 

 

SPEND DOWN

OF ASSETS BY SPOUSE OF MARRIED MEDICAID APPLICANT

PROBLEM: SPOUSE HAS ASSETS IN EXCESS OF 74,820

SOLUTION: SPOUSE SPENDS DOWN:

                                                1. NEW CAR

                                                2. REMODELS KITCHEN, BATHROOM

                                                3. NEW FURNACE, CENTRAL AIR

                                                4. NEW ROOF

                                                5. PAVES AND REPAIRS THE DRIVEWAY

                                                6. NEW WINDOWS

                                                7. REPAIR  PORCH

                                                8. NEW FURNITURE, APPLIANCES, COMPUTER,

                                                                PRINTER, TV,

                                                9. BE CREATIVE J

 

 

USE OF BURIAL SPACE AGREEMENTS IN CRISIS PLANNING

TO AVOID THE 5 YEAR RULE

GIS 11 OHIP/ADM-4

A MEDICAID APPLICANT CAN SET UP A BURIAL SPACE AGREEMENT ONE MONTH BEFORE THE PICK UP DATE FOR MEDICAID FOR FAMILY MEMBERS AND HAVE THE AMOUNT OF THE AGREEMENT BE AN EXCLUDED  ASSET FOR MEDICAID PURPOSES

                1. Irrevocable Pre-Need Agreement - A contract in which payment is made in advance of need to a funeral director, funeral firm, undertaker, cemetery, or other person, firm or corporation, in return for the furnishing of the specified merchandise and/or services to be provided upon the death of the beneficiary of the agreement. Payment for the merchandise and/or services purchased under the contract is required to be held in an irrevocable trust and cannot be refunded to the purchaser or other beneficiary

                 2. You can pay for:

                  Burial Space Items - Burial plots, gravesites, crypts, vaults, mausoleums, caskets, urns, or other repositories customarily and traditionally used for the remains of deceased persons. Arrangements for opening and closing of the grave, burial containers (e.g., for caskets), headstones and headstone engraving are also considered burial space items.

                3. You can’t pay for:

                Non-Burial Space Items - Items such as topical disinfection, custodial care, dressing/casketing, cosmetology, supervision for visitation and/or funeral service, hearse, death notices, flowers and out-of-town shipping.

                4. Family Members Include:

                                The senior’s spouse, minor and adult children (including adoptive children and step-children), brothers, sisters, parents, adoptive parents and the spouses of those individuals as long as the marriage is in effect.

                5. The senior must be the purchaser, not the child!!!

                6. The Senior can’t give the money to the child to set the up the agreement. This won’t work if the purchaser is the child.

 

 

HOW THE USE OF BURIAL SPACE AGREEMENTS WORK:

SENIOR HAS FOUR CHILDREN

THREE OF THE CHILDREN ARE MARRIED

HE HAS QUOTES FOR THE FOLLOWING:

                COFFIN                                                                                                $3,000

                BURIAL CONTAINER                                                                      $1,000

                OPENING AND CLOSING OF THE GRAVE                                $1,000

                PLOT                                                                                                    $1,000

                STONE                                                                                                 $1, 000 

                                                                                                                              $ 7,000

                <> 7 BENEFICIARIES X $7,000 = $49,000 CAN BE PROTECED

                                THE MONTH BEFORE YOU ARE ELIGIBLE FOR MEDICAID.

                <> THERE IS NO LIMIT ON THE AMOUNT OF THE ITEMS BUT THEY

                       SHOULD BE REASONABLE.

                <>  PLANNING TIP: PAY FOR THESE BY WITHDRAWING A BANK

                      CHECK TO THE FUNERAL HOME TO MAKE  SURE THE CHECK

                      CLEARS PRIOR TO THE FIRST OF THE MONTH!!!

                <> WHATEVER IS NOT SPENT GOES TO COUNTY

 

 

Exceptions: The transfer of exempt assets, other than a homestead, does not affect senior’s eligibility for Medicaid.

                1. A Medicaid applicant or the spouse may transfer the homestead, without penalty, to his/her Spouse

                2. To a Child under the age of 21

                3. Certified blind/disabled child of any age;

                4. Sibling who has an equity interest in the applicant’s home and has resided in the home for at least one (1) year immediately prior to the applicant’s most recent institutionalization; or

 TRANSFER OF ASSETS TO AN ADULT CHLD

                5. An adult child who resided in the applicant’s home for at

least 2 years, immediately prior to the applicant’s most recent institutionalization and who provided care to the applicant which permitted the applicant to reside at home rather than in a medical facility. It is presumed that the child “provided care” unless there is evidence to the contrary.

PLANNING TIP: A HOUSE MUST GO DIRECTLY TO THE CHILD.

 


TRANSFER OF ASSETS OTHER THAN A HOUSE

TO A DISABLED CHILD

                6. To a trust established solely for the benefit of an  individual under 65 years of age who is disabled. Upon the death of the child, the balance in the Trust must be paid to the estate of the child upon the child’s death so Medicaid can file a lien against the assets if the child was on Medicaid.

A HOUSE MUST BE TRANSFERRED DIRECTLY TO A DISABLEED CHILD AND NOT TO A TRUST FOR THE CHILD ACCORDING TO A RECENT FAIR HEARING THAT RULED THAT THIS LANGUAGE ONLY APPLIED TO ASSETS OF THE APPLICANT OTHER THAN A HOUSE. L

PLANNING TIP: IF THE SNT IS SET UP 5 YEARS PRIOR TO A SENIOR GOING INTO A NURSING HOME, THEN THE BALANCE IN THE TRUST ON THE DEATH OF THE SPECIAL NEEDS CHILD CAN GO TO OTHER CHILDREN AND NOT THE CHILD’S ESTATE, AVOIDING A MEDICAID LIEN

 


MEDICAID TREATMENT OF IRAS AND RETIREMENT ACCOUNTS

TAX DEFERRED PLANS THAT PROVIDE INCOME TO SENIORS:

                IRAS

                401 (k)

                403 (b)

                457 PLANS

                PROFIT SHARING PLANS

                MOST DEFERRED COMPENSATION PLANS

                MISC. OTHER TAX DEFERRED RETIREMENT ACCOUNTS            

IF A SENIOR OWNS A RETIREMENT ACCOUNT AND IS ABLE TO MAKE A WITHDRAWAL FROM THAT ACCOUNT, THE ACCOUNT WILL BE CONSIDERED AN “AVAILABLE RESOURCE.” THE COUNTABLE AMOUNT IS THE VALUE OF THE ACCOUNT NET OF ANY EARLY WITHDRAWAL PENALTY.

NOTE: INCOME TAXES DUE UPON THE DISTRIBUTION DO NOT REDUCE THE AMOUNT THAT IS COUNTABLE AS AN AVAILABLE RESOURCE. L

 

PROTECTING IRAS AND RETIREMENT ACCOUNTS

CONVERTING THE IRA /RETIREMENT ACCOUNT FROM AN AVAILABLE RESOURCE INTO AN INCOME STREAM

IF THE SENIOR OWNS AN IRA OR A RETIREMENT ACCOUNT AND HAS ELECTED TO RECEIVE PERIODIC PAYMENTS, (OFTEN CALLED “ANNUITZING” OR REFERRED TO AS PLACING  IT INTO DISTRIBUTION STATUS,) THE IRA OR RETIREMENT ACCOUNT WON’T BE COUNTED AS AN AVAILABLE RESOURCE FOR THE MEDICAID ASSET ELIGIBILITY TEST, BUT THE PAYMENTS WILL BE CONSIDERED AS INCOME FOR THE MEDICAID INCOME ELLIGIBILITY TEST.

 

 

EXAMPLE OF HOW TO PROTECT AN IRA OR RETIREMENT ACCOUNT

SENIOR HAS AN IRA VALUED AT $75,000

SENIOR IS A 72 YEAR OLD MALE

HIS LIFE EXPECTANCY IS 12.44 YEARS OR 149.28 MONTHS

HIS MONTHLY PAYMENT IS $75,000/149 = $503.36

ON HIS DEATH THE BALANCE OF THE 149 PAYMENTS GOES TO  KIDS

IF HE WAS MARRIED AND HIS WIFE HAD INCOME UNDER $2,477.14 ($2,980.50 – 503.36) HIS WIFE GETS TO KEEP THE $503.36 AND IT IS ENTIRELY PROTECTED FROM MEDICAID. J

THE SAME RULES APPLIES TO NON QUALIFIED ANNUITIES PURCHASED BEFORE FEBRUARY 8TH, 2006.

NOTE: AS OF JULY 15TH, 2014, MARRIED MEDICAID APPLICANTS IN ONEIDA COUNTY GET TO USE THE IRS TABLES IN DETERMINING THE AMOUNT OF THE IRA/RETIREMENT MONTHLY PAYMENT WHICH CAN RESULT IN A LOWER PAYMENT EQUAL TO THE RMD FOR IRS PURPOSES.

 

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Last Updated: June 29, 2016

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