Medicaid

What’s an asset protection trust? What’s a Trust?    Watch the video on Asset Protection from Medicaid   Like this video? Subscribe to our channel.   The Deficit Reduction Act of 2005 established a June 30, 2006 deadline for the Secretary of Health and Human Services (HHS) to release regulations for states to come in compliance with the new severe new restrictions on the ability of the elderly to transfer assets before qualifying for Medicaid coverage of nursing home care.   The law extends Medicaid’s “lookback” period for all asset transfers to 5 years, it was originally 3 years and changes the start of the penalty period for transferred assets from the date of transfer to the date when the individual transferring the assets enters the nursing home.   Qualification to enter the nursing home is achieved when the individual is out of funds, meaning he/she cannot afford to pay the nursing home. The new federal law applies to all transfers made on or after the date of enactment, February 8, 2006. Any transfer made before February 8 falls under the old transfer rules. Exact enactment provisions are state by state, but it’s clear that non-compliance by 50 state legislatures puts their federal funding at risk.   You can protect yourself from the Medicaid nursing home care by taking action now while you still have your health.   You can reposition (transfer) your assets from you to an irrevocable trust with a truly independent trustee. The key is the “Independence of your Trustee.” The trustee cannot be any-one related to you by blood or marriage. And, you must be willing to give-up complete control over your assets. This lack of perceived control is the most difficult to achieve. Seniors have a deep sense of independence by their ability to control and manage their assets.   Revocable or irrevocable trust, what’s that mean? Revocable is when the original person with the assets transfers (repositions) the assets to a trust with strings attached. The tax lingo is “grantor-type trust. The “strings” when the original grantor (person with the assets) elects himself as the trustee, and the beneficiary of the trust. The grantor, the trustee, and the beneficiary are the same person. Effectively you have kissed yourself on the hand and blessed yourself as the pope. This simply will not work. Period.   An irrevocable trust is when the grantor (the person with the assets) gives-up complete control to an independent trustee who in turn will use his judgment as trustee to manage the assets for the beneficiaries of the trust. The fiduciary relationship of the trustee is to the protection of the assets at any cost. The trustee must protect and must diligently invest under the prudent man rules, he cannot ever deal for himself. The courts do not look favorably on dereliction of duties while serving as trustee. An irrevocable trust is the only significant asset protection device for avoiding the Medicaid spend-down provisions.   Asset protection from Medicaid requires foresight and a strong conviction to walk away from perceived control. Inaction is devastating. Seniors must use all their funds first, then qualify for the nursing home. It’s clear, that these new rules are designed to impoverish the healthy spouse.        

What’s an asset protection trust? What’s a Trust?    Watch the video on Senior Medicaid Asset Protection   Like this video? Subscribe to our channel.   As tax preparation time begins, many seniors are asking to include Medicaid asset protection as part of their tax planning strategies. For those of you not familiar with the 2005 Tax Reduction Act, some of the provisions address specific transfers by seniors under the new Medicare nursing home provisions. Under the new provisions, before a senior qualifies for Medicare assistance into a nursing home, they must spend-down their assets. These new restriction have a 5 year look-back, used to be 3 years. And used to be that each spouse had a one-half interest in the marital property, it now appears that all the marital assets are to be spent-down. I have not seen specific regulations but it appears that the healthy spouse will be left without any assets if one of them gets sick.   Suggestions by seniors have been to transfer their assets to their children. Although this option is available, I’m not sure that it’s a good option. What if the child decides to use the asset for themselves, what if they get divorced and the judge awards assets originally intended for the parents to the divorcing wife’s decree, what if the child get’s sued?   There are also tax implications. If the assets are transferred to the child for less than fair market value, then it’s a taxable gift. Even worse, if this type of transfer to the child is completed before the 5 years-look back, is it a “fraudulent conveyance?”   Medicaid asset protection has to be done very carefully. Planning in this area is evolving. There are a lot of eldercare law firms popping up all over the place. I have been approached by such a firm to send them clients. They claim that they can structure a new deal whereby the nursing home won’t be able to attach assets even after they enter the nursing home.   I know this much, any method used to deflect assets from the original owner has to be done at it’s fair market value. For example you just can’t transfer your house from you to your child. There are tax consequences. Did you just sell your house? Or did you just gift your house? Who will determine the fair market value? Did you get a genuine appraisal? If therefore, it’s at less than fair market value (willing buyer and willing seller, neither under compulsion to buy or sell, each acting in their best interest) did you just create a more challenging problem?   Any method whereby there’s an element of strings attached, it’s revocable and therefore you have done nothing to disassociate yourself from your asset. One can challenge your intent, to divert assets for the purpose of defrauding a potential creditor and failure to have filed a gift tax return has statutory penalties, and interest, worse- if Medicare intended, criminal?   I am aware of only one method of disassociating yourself from your asset (personal residence, your CD’s, your investments, vacation spot) is to give it away. Period. You can gift it to your children, pay the tax and that’s it. The problem is that you no longer have any control and you are at the mercy of your child’s good intentions and a blessed spouse. Risky? You bet!   An irrevocable trust with an independent trustee (not related to you by blood or marriage) will fit the bill. An irrevocable trust, is an irrevocable contract between you and the independent trustee to manage the assets for the benefit of all beneficiaries. You and your spouse can become beneficiaries along with your children and grand children.   Timing is extremely important. If the transfer (repositioning) of your valuable assets is done before the 5 years, chances are good that it will stand-up in court. What if it’s before the 5 years are up? Is your Medicaid asset protection plan still good? In my book it’s better to have done something than nothing.        

   Watch the video on Hide My Assets from Medicaid 3 quick tips   Like this video? Subscribe to our channel.   In social functions, I always get asked about the new Medicaid nursing home qualifications and how do I hide my assets from Medicaid. Seniors become very anxious about having to spend-down their assets with no cap on the amount that they can keep. This unlimited drain on their funds is of major concern to the healthy spouse, and because the sick spouse can’t do anything about getting sick, they become more and more depressed.   These folks are of the World War II generation and the market crash of 1929 mentality. If you don’t have the cash you don’t buy it. Most of them got a credit card only because they had to pay their prescriptions over the mail.   Their health and well-being depend on knowing that they can tap into their resources to get what they need or when their grandkids come to visit they want to reward their visit with a few bucks. My mother is of this vintage, and I know that when my kids drop in for a visit, it makes her day.   She wants to give them something in return, not because it’s an enticement to come back, but she doesn’t get out enough visits and she values their time, especially in this day of instant gratification with Ipods, Internet, cell phones, video, etc. and because they valued their grandmother more.   How Do I Hide My Assets from Medicaid Then?   So, how can I hide my assets from Medicaid is relevant to their lives. My answer is that if they did not do something as far back as five years ago, chances are that trying to do something now, could very well be considered a fraudulent conveyance in order to defraud a potential creditor.   For example, if they were to put their son or daughter on the deed of the house without adequate consideration, it would be considered a “fraudulent conveyance” because they did it for less than the fair market value, they received nothing back in return. Or, if they did recognize that they gave away the house to their children it was a taxable gift and taxes are due on the transferor (the person giving the gift has to pay the tax, the person receiving the gift is always after taxes).   But like many people they don’t think it through in terms of filing of a gift tax return or fraudulent conveyance. They just do it for their convenience.   Restrictive Medicaid Spend-Down Provisions   The new Medicaid spend-down provisions are very restrictive. The intention is that if you (the elderly) have assets before you qualify for nursing home assistance, they want you to become a welfare recipient.   And that’s what seniors are afraid to become. Their generation never asked for assistance if they had a strong back, they worked for their dignity. They don’t want to become “welfare recipients” it a very humiliating concept to them.   Common Mistakes Committed by Seniors When Trying to Hide Their Assets:   Naming their children as (Parent’s name “and” Child’s name) (Parent name “or” Child’s name) on their savings, checking, investment accounts, or near cash accounts. THIS IS NOT A GOOD IDEA. Too much risk, what if child gets sued, or divorced, or worse dies. You open a new can of worms. Give the house to the children. You name one or more of the children. Again not a good idea. What if the children get sued, divorced, or prematurely dies. There’s too much risk. Cash under the mattress, in between the walls, in the basement, etc. Well it works, but unless you tell someone the hiding place, then what? Or, leave the cash to lose interest or depreciate with inflation? In God we trust.   Trusts are the most common and useful legal devices. An “Irrevocable Trust” works best for hiding your assets. Your assets are RE-POSITIONED from you to an irrevocable trust. You “legally” no longer own the assets.   This involves the actual transfer of assets to an independent trustee who will independently manage and actually own the assets for the benefit of all beneficiaries. This type of control over assets is not new, it goes back to medieval times when landlords went off to the crusades and left their lands in trust of monks for when they returned.   There are specific laws and it’s generally accepted by the judicial system as a legal, acceptable method of protecting one’s assets for legal protection and tax minimization.   To learn more about irrevocable trusts and senior elder care visit:   Medicaid: elder care Asset Protection from Medicaid Medicaid Asset Protection Protect Assets Nursing Home Costs Nursing Home Spend-down Program Medicaid Estate Planning