Is an annuity exempt from Medicaid's "spend down"?


No annuity is exempt from being counted as an available resource UNLESS procured immediately before submission of the Medicaid application.   Anytime I hear use of annuities as a pre planning tool it throws up a red flag of bad information being provided. 

For Married couples an alternative to the gifting route you could utilize a Medicaid Qualifying Annuity to shelter some costs. Medicaid qualification criteria look to the income of the applicant and the assets of both spouses. One requirement of this annuity is that the State of Washington must be named as the primary beneficiary before the community spouse. Another downside to using an annuity to convert resources to income is that the income that comes in the name of the community spouse will most likely preclude you from requesting an income allocation from the applicant to the community spouse.

For single person, under Medicaid rules, you are not able to utilize an annuity in the traditional sense of sheltering your excess assets by converting them into a stream of income. However, since you will be gifting some of your assets, which will cause a period of ineligibility, you can minimize your penalty by annuitizing a sum which, when added to your monthly income, will give you adequate income to meet your monthly long-term care costs. 

Estate Taxes

 

 As you may already know we are in uncertain tax planning times. In 2010 there is no estate tax unless Congress takes steps to finalize some solution. Next year the estate tax exemption is slated to be $1,000,000, the same amount it was in year 2000 with a tax rate that can go up to 55%.

Currently, the Senate is about to introduce a bill seeking a $5,000,000 per person exemption with a maximum estate tax rate of 35%; while thehouse had passed a bill in 2009 with a $3,500,000 exemption amount with a 45% highest tax bracket. In a politically active year it is expected that Congress will do something, but that should not be taken for granted.

For that reason, in my view it would be prudent to plan your estate around the $1M exemption amount. This is done by implicating the use of trusts whereby each of you (married Couples) agree to leave your share of the estate to a credit shelter trust instead to each other. This allows the surviving spouse's share of the estate to be no more than his or her half of the total community estate, and hopefully less than $1M. This was the planning many of you had undertaken before and that should be continued, but with a twist.

The twist being that the trust should also make provisions to make the assets in the trust invisible to the long term care financing system or Medicaid. This way, if the surviving spouse needs long term care AFTER the death of a spouse, the assets in the trust cannot be required to be spent down to $2,000, thus assuring the surviving spouse that he/she will not be left penniless and some of the assets will end up as an inheritance with your children. The chances are remote that you will need Medicaid, but the provisions are prudent in these uncertain times.

How Can I Get My Mom the Aid She Needs?

My mother is 79, and she just recently moved up here, the problem is, she cannot walk, and she needs 24-hour care. Does she have to spend all her money before Medicaid will help her out?

 The short answer is No. If you were to go down to DSHS and say, “I have my mom, she is unable to take care of her own needs, and she needs some assistance.” They will provide help, but only if she has no more than $2000 to her name. That is the general rule.

But just like estate taxes, there are ways to do planning around the whole thing. In order to get to that $2000 level, she does not necessarily have to spend the rest of her money on nursing homes, medication, etc. The first questions that need to be asked of yourself are: What are the issues she is dealing with? & What is the least restrictive setting in which her needs may be met?

You need to discuss these options with a Care Manager as well as possibly set up a planning opportunity that allows her to protect some of her wealth, 30%-50%, and become eligible for Medicaid.

 

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Is the Advantage plan a Good Choice?

Right now, I have Part A and Part B plus AARP Medigap, will the Advantage Plan supplement what I already have? Also, is it difficult to change over to the Advantage Plan and is it expensive?

 The Advantage Plan is a different plan altogether, it has to do with hospital and doctor bills, Part A and Part B, the Advantage Plan replaces Part A and Part B and says that you have no reason to go ahead and buy these separate parts, Part A and Part B, you can just come to us and we will go ahead and cover both doctors and hospitals. 

Talk to your doctor, and see which plan your doctor will accept. If you are happy with your doctor, and he will continue to stay with Part B throughout the next year, I would suggest you stay with Part B at this stage. But if your doctor is not so sure, then you may have a reason to look at the Advantage Plan.

 The Advantage Plan is not very expensive, but the enrollment period starts now, in January, but you can pre-enroll earlier.  If you start in January, your benefits will start as early as July.

 

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Debunking A Myth About Gift Taxes

*House Gift

We would like to help pay off our children’s houses.  Both owe approximately $100,000 each.  Is there any way to do this considering the gift taxes and other obstacles?

You can do it.  The limit, which is $13,000 per year, per person, has nothing to do with estate gift taxes.  According to the law, any American can gift up to $1,000,000 in their lifetimes without worrying about any gift taxes. The IRS holds a ledger with the amount of $1,000,000.  Only when the amount exceeds $13,000 does a person needs to contact the IRS. 

So a gift of $100,000 can be done without worrying about gift taxes or income taxes.  The only thing that would need to be done is to file a gift tax return(pdf), in which case the IRS will reduce your $1,000,000 lifetime exemption accordingly.  In this specific case the IRS will reduce the $1,000,000 by $87,000 each.  
 

The other impacts that this gift may have is that if either parents requires medicaid within the next five years it may become complicated.  However, if done properly, this would not be a problem either.  Since this will be done without medicaid in mind, medicaid cannot count this as a penalizing transfer. 

But the problem is that medicaid presumes that no one ever makes a gift for reasons other than qualifying for medicaid.  Therefore, some documentation will need to be secured before making the gift in order to stop this from coming back to haunt you. 
 

Medicaid Benefits Qualification Rule

 Is property conveyed by a single person to a safe harbor trust subject to the five year transfer penalty for purposes of qualifying for Medicaid coverage? If so, what are the advantages of a safe harbor trust as compared to simply gifting the estate property? 

 For a single person the act of transferring property is what starts the five year penalty. Which makes the owner of the property the wrong individual to create the trust unless the trust will name someone other than the transferor as the beneficiary. For those who want to remove assets out of their own estates for asset protection purposes would need to first gift the assets out of the estate to someone they trust; it is that transferee who will then create the safe harbor trust and place the gifted assets in the trust (subject to planning around a concept in law referred to as the step-transaction theory). The purpose would be for the transferee to want to protect the assets from his/her own creditors for the benefit of the named beneficiary (hopefully the transferor) and from title XIX benefits (Medicaid benefits).

For example, a parent might gift a home to a child. The child could consider that unless he put the home in a trust it would be vulnerable to his creditors (accident claim creditors, divorcing spouse etc.) By creating a trust he would remove the asset out of his own estate and thereby be able to afford a level of protection in the home for the parent who gifted the home in the first place.

Alternatively, the parent could place the home in the safe harbor trust naming the child as the exclusive beneficiary. Clearly nothing would stop the child from allowing the parent to use the home even though it is not owned by the parent. Either way, the gift out of the parent’s name subjects the transfer to the five year rule.

Importance of Power of Attorney

How can a Power of Attorney help keep you out of a nursing home?

Power of Attorney is more powerful that you think and a document that is not given much thought. To clarify, a power of attorney is a document that you sign to name a person of your choice, who you wish to appoint as your surrogate to act on your behalf should you be unable to act on your own behalf. This may be because you are out of town or are physically or mentally incapacitated to a point that you cannot attend to your own affairs. 

Think about how you and I decide who to name as our surrogates. We simply choose the people we love and trust the most without giving much thought to the types of decisions they will have to make. In reality the most difficult decision our surrogates will make is to step in when they see us slowing down in life. 

We say to them that if you see that we cannot manage our own affairs, we trust you that you will make all the right decisions, including the decision about our housing needs. And when our surrogates find us not being able to address our own needs independently they will turn to the medical community for help. And our medical community views nursing homes and assisted living facilities like the rest of us view McDonalds. Cheap, convenient and available. Little attention is given to the effects and quality of the food.  Same way, the doctors and medical providers generally do not explore the issue in any detail because institutional care is an easy fix. 

This is the reason why many of us end up in nursing homes though we could well be able to stay at home. So, what you want your power of attorney to do is not just to give responsibility to your surrogate, but also to direct that your surrogate use the resources in your estate to seek out the assistance of a qualified geriatric care manager who can provide your surrogate options that should be considered about your care needs. Including whether you could stay at home and if so what services would be needed to accomplish the objective; if you could not stay at home what alternatives exist between home and nursing home and associated costs. 

With this information your surrogate could make the final determination, but at least it will be based on a thorough review of the facts by an objective independent professional. In the end, you are not a burden on your surrogate and your quality of life is much improved because of this directive. Not to mention the analysis of whether Medicare or Medicaid could cover some of the costs. 

What is Medicaid ?

Medicaid is a federal program that provides payment for medical care for persons who are unable to pay for medical care. It covers physicians' services, hospital care, medications, supplies, and other necessary services. It also pays for the expenses of long-term care in a nursing home or an adult care home. The Medicaid program is administered independently in each state, but the basics are the same throughout the United States. Eligibility is based upon the amount of assets a person has, along with the income that the person receives.

It is important to distinguish between Medicare and Medicaid. Medicare is an insurance program providing payment for medical needs for persons 65 and over and for certain disabled persons. All persons 65 and over, regardless of financial resources or income, are eligible for Medicare. Medicare, however, provides only limited coverage in the case of an illness, excluding payment for prescription medications and not covering any of the cost of long-term custodial care in nursing homes or adult care homes. These non-covered items must be paid privately by Medicare beneficiaries, unless coverage is provided under some type of supplemental policy the person has purchased independently. Medicaid, on the other hand, pays for all medical needs for those of any age who have been determined to be eligible. In fact, a person with limited income and resources who has Medicare coverage may also qualify for Medicaid benefits.

Medicaid is most often of importance to middle-income Americans because the cost of long-term care for such illnesses as Alzheimer's Disease or paralysis caused by a stroke is not covered by Medicare. Most people who need such care for extended periods will eventually deplete their assets and be unable to pay the costs of their care. At such a time, Medicaid is available to pay the difference between their actual income and the actual costs of care, including not only room and board, but also physicians' care, medications, hospital care, and all other reasonable necessary medical expenses. Medicaid covers the costs of such care in nursing homes, adult care homes, hospices, and, in appropriate cases, in the patient's own home. If faced with the possibility of such long-term care expenses, there are certain facts one should be aware of:

 

  • In determining eligibility for Medicaid payment for long-term care expenses, a team, comprised of a social worker and financial worker, will review the individual's actual need for care, the person's available resources (including life insurance and retirement plans), and income received from any source.
  • In determining the eligibility for one spouse, the resources and income for both spouses is considered, regardless of community property laws or the nature of the ownership of the asset.
  • Any assets transferred within 60 months prior to application may be considered available if they were transferred for less than value, whether they were transferred to a person or to a trust.
  • Assets of married couples, however, receive special treatment so that the spouse who remains living at home will not be unduly impoverished. Such a non-institutionalized spouse is permitted to keep up to a federally-established maximum of $47,104 to $111,560 and is allowed to keep a substantial portion of the income of the couple in order to provide for support expenses at home.
  • In addition, there are certain resources that are not counted for eligibility purposes; these may include the family residence, household contents, a vehicle, an irrevocable prepaid burial fund, and other necessary items.
  • It is important to be aware of the specific eligibility provisions and exemptions so that assets will not be wasted before applying for Medicaid.
  • There are appeals processes built into the Medicaid system. If a person is unhappy with eligibility determinations, care decisions, or placements made under Medicaid, there is a process for administrative review, an administrative hearing, and even court proceedings to help enforce one's rights.

It is important for you to understand certain aspects of the risks associated with legal and financial planning for institutionalization in a skilled nursing facility. As we have previously discussed, planning for Medicaid eligibility can be very time-consuming and financially risky and at times overwhelming. I will advice you to have a guide, who has walked this walk & who can make your journey through this maze comfortable, pleasant and enjoyable.....
 

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Forced discharged from Hospital

As an Elder Law Attorney, I experience first hand  the same pain, anguish, struggle and frustration a family goes through while taking care of their loved one. Our health care system is so broken and complicated that it has simply forgotten the notion it was created on. Every one is treated as one fit size all regardless of individual necessities and requirements.

This week I received an email from one of my loyal radio show listener, who herself is a psychiatric nurse practitioner  for last 30 years & taking care of her elderly mother. Her mother is right now at a rehab facility and she has Group Health Insurance. Rehab facility and Group Health managed  care wants to discharge her mother even though she cannot transfer by herself and may even have torn her shoulder rotator cuff in the fall which had not even been addressed yet. 

Daughter thinks Group Health is not meeting their fiduciary duty  & wants to discharge her mom, even when it is not safe for her mom to be discharged.....Daughter is struggling & fighting with the system, simply to maintain the quality, safety and dignity of her mom's life.

Under the law, Group Health can only discharge mom if it is safe for her to be discharged. I suggested  the daughter to hire the services of a care mangers (social workers) to interface with the medical community and try and work with them in developing the discharge plan. If they are given a hard time then I will write a letter as an attorney requesting their cooperation and informing them that their planned discharge will place mom in physical jeopardy for which they may have liability. If they still insist in discharging then they have to give  a written notice to mom and mom will have the right to request review. While the review is pending, Group Health must pay for the care of mom. However, if the review is unfavorable to mom then mom would have to pay for the days out of her own pocket.

I also suggested daughter to have a backup plan that is to  work on Medicaid and or VA benefits while trying to push the Medicare days. The ideal way to deal with this situation will be to have care managers meet the Group Health folks and get an idea of what needs to be done to ensure the safety & quality of life for mom before discharging her and simultaneously review mom's estate for VA and Medicaid benefits......