Will Making a Gift Conflict with Medicaid?

People usually make gifts for three reasons—because they want to provide for the recipient, because they want to protect assets, or minimize tax liability. However, gifting in one’s elder years can have expensive and unintended consequences, as reported in the article “IRS standards for gifting differ from Medicaid” from The News-Enterprise, especially with Medicaid.

As a quick aside, if you’ve read any of my articles on gifting, you know I preach caution.  Way too many people make gifts because of a perceived benefit, and don’t consult a professional to determine whether there is a benefit.  That said, for the purposes of this article, I’m going to focus on Medicaid gift tax consequences as opposed to all of the other pros and cons in making gifts.

A primary reason for most people to make gifts is tax planning.  The IRS gift tax becomes expensive, if gifts are large. However, each individual has a lifetime gift exemption and, as of this writing, it is $12.06 million, which is historically high. A married couple may make a gift of $24.12 million. Most people don’t get anywhere near these levels. Those who do are advised to do estate and tax planning to protect their assets.

The IRS also allows an annual exemption. For 2022, the annual exemption is $16,000 per person. Anyone can gift up to $16,000 per person and to multiple people, without reducing their lifetime exemption.

However, the more real danger is the effect of a gift on Medicaid or long-term care benefits.  People, and frequently financial advisors and non-attorney professionals, often confuse the IRS annual exclusion with Medicaid requirements for eligibility. IRS gift tax rules are totally different from Medicaid rules.

Medicaid does not offer an annual gift exclusion. Medicaid penalizes any gift made within 60 months before applying to Medicaid, unless there has been a specific exception.  The Veterans Administration may also penalize gifts made within 36 months before applying for certain VA programs based on eligibility.

For Medicaid purposes, gifts include outright gifts to individuals, selling property for less than fair market value, transferring assets to an irrevocable trust, or giving away partial interests.  Some gifts are expressly permitted, such as gifts between spouses.  Also, most states have some species of an exception for very small gifts, but that definition varies widely.

For example, in Texas there is no exception for small gifts.  However, Medicaid staff is instructed not to inquire into potential gift transactions for less than $200 total in a month.  That doesn’t create a strategy of gifting typically, but it avoids Medicaid penalties when Grandma gives $50 to a grandchild for their birthday.

The penalty for gifting in Medicaid is a penalty period.  In short, Medicaid looks at your eligibility, and once otherwise eligible will calculate a penalty period by dividing the value of your gifts by a penalty rate based upon the daily average cost of a nursing home in the year of the gift.  So, if you gave away $50,000 and the penalty rate is $250 per day, you are ineligible for 200 days.  During this time you’ll have to find a way to pay yourself before Medicaid will.

So, gifting where Medicaid may be an issue in the future often has very real and dangerous consequences.  That doesn’t mean gifting can’t be useful in Medicaid, as sometimes gifting is an express strategy for eligibility, but anyone making gifts should do so at the advice of an attorney.

Reference: The News-Enterprise (Aug. 6, 2022) “IRS standards for gifting differ from Medicaid”

Continue ReadingWill Making a Gift Conflict with Medicaid?

Does a Supplemental Needs Trust have an Impact on Government Benefits?

I wanted to touch on a topic that has come up quite a lot recently, namely, how to leave property to individuals with disabilities.  The key to this, in most cases, is to create a Supplemental Needs Trust (SNT) which will allow individuals with disabilities to retain inheritances or gifts without eliminating or reducing government benefits, like Medicaid or Supplemental Security Income (SSI).  Using the SNT allows them to receive additional funds to pay for things not covered by their benefits.

Having an experienced estate planning attorney properly create the SNT is critical to preserving the individual’s benefits, according to a recent article titled “Protecting Government Benefits using Supplemental Needs Trusts” from Mondaq.

Individuals who receive SSI must be careful, since the rules about assets from SSI are far more restrictive then if the person only received Medicaid or Social Security Disability and Medicaid.

The trustee of an SNT makes distributions to third parties like personal care items, transportation (including buying a car), entertainment, technology purchases, payment of rent and medical or therapeutic equipment. Payment of rent or even ownership of a home may be paid for by the trustee.

The SNT may not make cash distributions to the beneficiary. Payment for any items or services must be made directly to the service provider, retailers, or other entity, for benefit of the individual. Not following this rule could lead to the loss of benefits as giving the money to the beneficiary counts against their benefit’s asset limit.

Now, some families who already have a loved one utilize government benefits might be familiar with SNTs generally.  If that’s the case, there is a second aspect of SNTs to be familiar with which is whether the SNT is funded with the individuals’ assets or other people’s assets.

If the SNT is funded using the person’s own funds, it is called a “First-Party SNT” This is a useful tool if the disabled person inherits money, receives a court settlement or owned assets before becoming disabled.

If someone other than the person with disabilities funds the SNT, it’s known as a “Third-Party SNT.” These are most commonly created as part of an estate plan to protect a family member and ensure they have supplementary funds as needed and to preserve assets for other family members when the disabled individual dies.

The most important distinction between a First-Party SNT and a Third-Party SNT is a First-Party SNT must contain a provision to direct the trust to pay back the state’s Medicaid agency for any assistance provided. This is known as a “Payback Provision.”

The Third-Party SNT is not required to contain this provision and any assets remaining in the trust at the time of the beneficiary’s death may be passed on to residual beneficiaries.

Many estate planning attorneys (ourselves included) us a “standby” SNT as part of their planning, so their loved ones may be protected, in case an unexpected event occurs and a family member requires benefits.

References: Mondaq (May 27, 2022) “Protecting Government Benefits using Supplemental Needs Trusts”

 

 

Continue ReadingDoes a Supplemental Needs Trust have an Impact on Government Benefits?

Medicaid Spend Down Strategies

Medicaid is not just for the indigent.  Medicaid is a government program which offers a variety of benefits to those in need, which includes elderly individuals who need assistance with paying for long term care costs. With the right planning, assets can be protected for the next generation, while helping a person become eligible for help with long term care costs.

Medicaid was to help with insurance coverage and protect seniors from the costs of medical care, regardless of their income, health status or past medical history, reports Kiplinger in a recent article “How to Restructure Your Assets to Qualify for Medicaid.” Medicaid was a state-managed, means-based program, with broad federal parameters that is run by the individual states. Eligibility criteria, coverage groups, services covered, administration and operating procedures are all managed by each state.

With the increasing cost and need for long term care, Medicaid has become a life-saver for people who need long term nursing home care costs and home health care costs not covered by Medicare.  So, this article will discuss various techniques and ideas on how to become eligible for Medicaid when appropriate.  However, this article is for ideas only, and I cannot stress this enough, but you should never undertake a Medicaid spend down without the advice and direction of an attorney.

If the household income exceeds your state’s Medicaid eligibility threshold, two commonly used trusts may be used to divert excess income to maintain program eligibility and thereby spend down income.

QITs, or Qualified Income Trusts. Also known as a “Miller Trust,” income is deposited into this irrevocable trust, which is controlled by a trustee. Restrictions on what the income in the trust may be used for are strict, and include things such as medical care costs and the cost of private health insurance premiums. However, the funds are owned by the trust, not the individual, so they do not count against Medicaid eligibility.  This tool is extremely effective, which facilities eligibility despite the amount of income.

If you qualify as disabled, you may be able to use a Pooled Income Trust. This is another irrevocable trust where your “surplus income” is deposited. Income is pooled together with the income of others. The trust is managed by a non-profit charitable organization, which acts as a trustee and makes monthly disbursements to pay expenses for the individuals participating in the trust. When you die, any remaining funds in the trust are used to help other disabled persons.

Meeting eligibility requirements are complicated and vary from state to state. An estate planning attorney in your state of residence will help guide you through the process, using his or her extensive knowledge of your state’s laws. Mistakes can be costly, and permanent, and often appear in Medicaid spend down.

For instance, your home’s value (up to a maximum amount) is exempt, as long as you still live there or intend to return. Several other exemptions may apply depending on the assets.  Otherwise, the amount of countable assets for an individual is $2,000, more for a married couple.

Transferring assets to other people, typically family members, is a risky strategy. There is a five-year look back period and if you’ve transferred asset without getting adequate value in return during that period your eligibility could be affected. So, gifting strategies could be risky.  If the person you transfer assets to has any personal financial issues, like creditors or divorce, they could lose your property.

Asset Protection Trusts, also known as Medicaid Trusts. You may transfer most or all of your assets into this trust, especially if they are otherwise countable. Upon your death, assets are transferred to beneficiaries, according to the trust documents.  This needs to be done in advance of the 5 year look-back, which is why this works best in anticipation of long term care need in the future, not when its imminent.

Right of Spousal Transfers and Refusals. Assets transferred between spouses are not subject to the five-year look back period or any penalties. Some states allow Spousal Refusal, where one spouse can legally refuse to provide support for a spouse, making them immediately eligible for Medicaid. The only hitch? Medicaid has the right to request the healthy spouse to contribute to a spouse who is receiving care but does not always take legal action to recover payment.

I should also point out that Medicaid recovery is an important aspect of Medicaid planning.  You can see this link for more details on that topic.  https://www.galliganmanning.com/protect-assets-from-medicaid-recovery/

Talk with your estate planning attorney if you believe you or your spouse may require long-term care and before undertaking Medicaid spend down. Consider the requirements and rules of your state. Keep in mind that Medicaid gives you little or no choice about where you receive care. Planning in advance is the best means of protecting yourself and your spouse from the excessive costs of long term care.

Reference: Kiplinger (Nov. 7, 2021) “How to Restructure Your Assets to Qualify for Medicaid”

Continue ReadingMedicaid Spend Down Strategies