Estate Planning Assets Protection, Uncompensated Transfers, and Trusts (including Special Needs Trusts)

Estate Planning Assets Protection, Uncompensated Transfers, and Trusts (including Special Needs Trusts) Mark D. Munson, CELA Ruder Ware, L.L.S.C. P.O. Box 8050 Wausau, WI 54402-8050 mmunson@ruderware.com Samantha L. Shepherd, CELA Shepherd Elder Law Group, LLC 4635 Wyandotte Street, Suite 210 Kansas City, MO 64112 Samantha@shepherdelderlaw.com

This product was produced for the National Academy of Elder Law Attorneys. Duplication of this product and its content in print or digital form for the purpose of sharing with others is prohibited without permission from the National Academy of Elder Law Attorneys. Look-Back and Transfers for Less Than Fair Market Value. A. Look-Back. 1. Definition When an application for long-term care benefits (i.e., institutional Medicaid (or Medical Assistance) or home and community waiver programs) is filed, the applicant essentially gives the government the right to look back into his/her and his/her spouse s financial affairs and records for a certain period of time. The applicant must be willing to disclose copies of records and statements as to his/her financial affairs for the relevant time period. In theory, the government is permitted to step into the applicant s shoes to receive and obtain financial information. The reason for the look-back is to determine whether any transfers for less than fair market value (i.e., gifts or divestments) were made within the applicable look-back period. See 42 U.S.C. 1396p(c). 2. The look-back period commences with the date of the application. 3. Transfers prior to January 8, 2006 (January 1, 2009, in Wisconsin) a. Three year look-back period for transfers to individuals b. Five year look-back period for transfers to trusts 4. Transfers after January 7, 2006 (December 31, 2008, in Wisconsin) a. Five year look-back period for transfers to individuals b. Five year look-back period for transfers to trusts 2013 NAELA Annual Conference May: 2-4 Basics Workshop: May 1 Atlanta, GA Page: 2

B. Transfers for Less than Fair Market Value (Gifts or Divestments). 1. Penalty Period a. Definition The period of time that the applicant will not be able to receive long-term care benefits (i.e., either institutional Medicaid or home and community waiver program) due to the fact that a gift/divestment or gifts/divestments were made during the look-back period by the individual or the individual s spouse. See 42 U.S.C. 1396p(c). b. Calculation In the event a gift/divestment is made within the applicable look-back period, the penalty period is calculated by dividing the value of the gift/divestment by a divisor. (1) For gifts/divestments made prior to February 8, 2006 (or January 1, 2009, in Wisconsin), the penalty period is calculated by dividing each gift/divestment by the average monthly private pay nursing home cost as determined by your state s health care agency (such as the Wisconsin Department of Health Services ( DHS )) and then rounding down. For example, the current average monthly private pay nursing home cost in Wisconsin is $6,554. For example, if an applicant made a gift/divestment of $70,000 on January 30, 2006, and the applicable divisor was $6,554, the penalty period would be 10 months ($70,000 divided by $6,554 equals 10.6805 months). (2) For gifts/divestments made after February 7, 2006 (or December 31, 2008, in Wisconsin), the penalty period is calculated by dividing each gift/divestment by the average daily private pay nursing home cost as determined by your state s health care agency and then rounding down. For example, the current average daily private pay nursing home cost in Wisconsin is $215.46. For example, if an applicant made a gift/divestment of $70,000 on February 20, 2006, the penalty period would be 324 days ($70,000 divided by $215.46 equals 324.89 days). 2013 NAELA Annual Conference May: 2-4 Basics Workshop: May 1 Atlanta, GA Page: 3

c. Penalty Period Start Date Trusts as a Planning Option A. Irrevocable Trusts. (1) For gifts/divestments made prior to February 8, 2006 (or January 1, 2009, in Wisconsin), the penalty period start date is the first day of the month when the gift/divestment was made. For example, if an applicant made a gift/divestment on January 30, 2006, in the amount of $70,000, the 10-month penalty period would begin on January 1, 2006, and would expire on October 31, 2006. (2) For gifts/divestments made after February 7, 2006 (or December 31, 2008, in Wisconsin), the penalty period start date commences when four conditions are satisfied. i. The applicant is in a long-term care facility or otherwise qualifies for benefits; ii. A Medicaid application is filed with the applicable local government office; iii. The applicant meets income tests to qualify for long-term care benefits; and iv. The applicant meets asset tests to qualify for long-term care benefits. For example, if an individual made a gift/divestment of $70,000 four years ago (e.g. May 1, 2009) and now has $10,000 in her bank account, has been admitted to a nursing home, has income less than the cost of care, and has applied for institutional Medicaid benefits, the 324-day penalty period will not start to run until the $10,000 is spent down to $2,000. 1. Assets in an irrevocable trust, correctly drafted, are no longer considered available assets. 2. Transfers to a trust are subject to a five year look-back period that starts upon the transfer of the assets into the trust. 2013 NAELA Annual Conference May: 2-4 Basics Workshop: May 1 Atlanta, GA Page: 4

3. The irrevocable trust is a useful tool; however, it is not appropriate for all clients. a. When anticipating and hoping to avoid long-term care costs, consider the use of an irrevocable trust. (1) The irrevocable trust may be created by the Medicaid applicant or the applicant s spouse. (2) The trustee of the irrevocable trust must have no discretion to make payments to the applicant. (3) The applicant must not be a beneficiary of the irrevocable trust. See 42 U.S.C. 1396p(d)(3(B). b. The irrevocable trust is not appropriate for all situations and there are factors to consider. (1) The irrevocable trust may result in a transfer penalty. Assets transferred to an irrevocable trust within 60 months of a Medicaid application will cause the applicant to incur a transfer penalty and will affect Medicaid eligibility. 42 U.S.C. 1396p(d)3)B)(ii). (2) The applicant may not desire to relinquish control of the assets. (3) The applicant may incur negative tax consequences. For instance, a trust may not be the owner of an IRA. Preserving the IRA dollars would necessitate cashing out the IRA and paying income tax. (4) The applicant may require nursing home care before the 60 month (5 year) look-back period. Example: Susan Settlor establishes an irrevocable trust in May 2013 and transfers $100,000 into the trust in that same month. The trustee had no discretion to distribute assets of the trust to Susan. Susan was not a beneficiary of the trust. In June 2018, the $100,000 in the irrevocable trust is no longer considered available to Susan and Susan is not subject to a transfer penalty, as the transfer was made more than 60 months ago. B. Special Needs Trusts. 2013 NAELA Annual Conference May: 2-4 Basics Workshop: May 1 Atlanta, GA Page: 5

There are certain uncompensated transfers that will not subject a Medicaid applicant to transfer penalties or ineligibility. Transferring assets into a Special Needs Trust is another Medicaid planning tool that may be available when seeking Medicaid eligibility. 1. Sole Benefit Trust. a. Transfers directly to the applicant s child who either is under 21 years of age or is blind or disabled will not cause ineligibility. Consider the implications of directly transferring assets to the child or disabled individual, including jeopardizing the child s benefits. b. Transfers directly to a trust for the sole benefit of the applicant s child who either is under 21 years of age or is blind or disabled will not cause ineligibility. c. Transfers to a trust for the sole benefit of a disabled individual who is under 65 years of age will not cause ineligibility. Federal law, specifically 42 U.S.C. 1396p(c)(2)(B), provides that transfers to any disabled individual are not considered divestments and, thus, are not subject to a transfer penalty. 2. (d)(4)(a) Trust. a. (d)(4)(a) Trust. Another type of Special Needs Trust that should be considered when planning for Medicaid eligibility is a Payback Trust. This type of trust may be funded with assets of the applicant and is not counted against the applicant and does not result in a transfer penalty. The trust is commonly referred to as a (d)(4)(a) Trust. The federal authority for the trust is 42 U.S.C. 1396p(d)(4)(A), hence the shorthand, (d)(4)(a). There are four basic requirements that must be met so that a (d)(4)(a) Trust will not result in ineligibility: (1) The individual is disabled; (2) The individual is under the age of 65 years; (3) The trust must contain a payback provision ; and (4) The trust must be established by the individual s parent, grandparent, legal guardian, or a court. b. The payback provision must provide that the state will receive all amounts remaining in the trust upon the death of the individual, up 2013 NAELA Annual Conference May: 2-4 Basics Workshop: May 1 Atlanta, GA Page: 6

to an amount equal to the total Medicaid benefits paid out on behalf of the individual. The trust may not be established by the individual. 3. Pooled Trust. a. The federal authority for pooled trusts is 42 U.S.C. 1396p(d)(4)(C). b. A pooled trust is managed by a nonprofit association. c. The account assets are pooled with assets of other disabled individuals. d. A separate account (or subaccount) is maintained for each beneficiary. e. Considerations when using a pooled trust (1) Age of the disabled individual. The age of the disabled individual is a significant consideration. Each state s law must be evaluated regarding whether an individual may make contributions to a pooled trust once the individual attains age 65. (2) Expense. A pooled trust is often a less expensive option than a (d)(4)(a) Trust, both in terms of establishing the trust and ongoing administration. (3) Accessibility or control. The disabled individual may have more control and more access with a (d)(4)(a) Trust than with a pooled trust. The pooled trust will have a non-family member administrator and the administrator will have procedures and protocols in place for accessing funds. 2013 NAELA Annual Conference May: 2-4 Basics Workshop: May 1 Atlanta, GA Page: 7

Single Person Crisis Planning. A. Spenddown. A single individual entering a nursing home is not without planning opportunities. The most simple method of becoming eligible is straight spenddown to below the permitted resource limit of the state in question. In Missouri, this asset/resource limit is $1,000. In Kansas, this resource limit is $2,000. Permissible spending may include: B. Annuities. 1. Home improvements 2. Mortgage or loan pay-off 3. Debt repayment 4. Funeral Plans- if irrevocable 5. Cemetery lot 6. Furnishings for nursing home room (Chairs, TVs) 7. Personal needs such as dentures, walkers, wheelchairs, eyeglasses, hearing aids, clothing 8. Vehicle appropriate for nursing home resident transport 9. Attorney fees 1. One planning method available in single person crisis planning involves the purchase of a Medicaid-compliant annuity. 2. The precise calculations vary by state, as each state determines its own penalty divisor. 3. The annuity creates a stream of income that is used to pay for nursing homecare during a period when the client/medicaid applicant is not eligible for Medicaid. 4. Typically the process is as follows: client makes a gift of non-exempt assets (exempt assets include pre-paid funeral arrangements, personal property, a vehicle, and $2,000.00 of cash or other assets) and incurs a penalty for making the gift. The Medicaid compliant annuity pays out an amount that, when combined with the client s existing income (such as social security, pension, etc.), closely matches the monthly obligation to the nursing home. 2013 NAELA Annual Conference May: 2-4 Basics Workshop: May 1 Atlanta, GA Page: 8

5. The factors needed to complete the calculation include the following: CHECKLIST FOR ANNUITY INFORMATION NEEDED FOR SINGLE PERSON NH RESIDENT Name NH RESIDENT Age or Birth Date Daily rate at NH (if KS, need Medicaid reimbursement rate for that specific NH) Prior Gifts within five years NH RESIDENT Social Security Income NH RESIDENT Pension or other Income VA A&A income possible? NH RESIDENT Supplemental Insurance Monthly Premium TOTAL ASSETS NH RESIDENT extra fixed costs Monthly (prescriptions/incontinence supplies) Crisis Planning for Married Couples. A. Typical Fact Pattern. Husband needs long-term care and has been admitted to a nursing home or similar care facility. Wife lives in the home. The couple s assets are as follows: Home $200,000 Checking and savings accounts $212,000 Investment accounts $100,000 Husband s IRA $100,000 Wife s IRA $50,000 Husband s life insurance $50,000 (cash value) Wife s life insurance $50,000 (cash value) 2013 NAELA Annual Conference May: 2-4 Basics Workshop: May 1 Atlanta, GA Page: 9

The couple s monthly income is as follows: Husband s social security $1,600 Wife s social security $1,100 Wife s pension $500 B. Determine Exempt Assets. 1. Home (unlimited value) (worth $200,000 in our example) 2. Wife s IRA (in Wisconsin) ($50,000) 3. All other assets are non-exempt counted resources C. Determine Community Spouse Resource Allowance ( CSRA ). 1. Determine value of non-exempt counted resources as of first day of thirty consecutive days of institutionalization (which means hospitalization or admittance to a nursing home). Husband is referred to as the institutionalized spouse and wife is referred to as the community spouse. 2. From our example, non-exempt counted resources include checking and savings accounts, investment accounts, husband s IRA, husband s life insurance (cash value), and wife s life insurance (cash value) for a total of $512,000. 3. Determine the amount of the CSRA as permitted by your state. In Wisconsin, the maximum CSRA amount is $115,920. If in Wisconsin, wife would be allowed to keep the maximum CSRA amount. 4. Exempt and allowed assets now include: a. Home ($200,000) b. Wife s IRA (in Wisconsin) ($50,000) c. Wife s CSRA (in Wisconsin) ($115,920) d. Husband s standard exemption ($2,000) e. Remaining non-exempted counted resources are $394,080. Until this amount is lawfully reduced to $0, Husband will not be eligible for Medicaid benefits. 2013 NAELA Annual Conference May: 2-4 Basics Workshop: May 1 Atlanta, GA Page: 10

D. Convert Non-Exempt Counted Resources to Exempt Assets. 1. Community spouse can purchase a new vehicle (vehicle of unlimited value is an exempt asset). 2. Community spouse can purchase home improvements, such as a new roof, new siding, new doors, new windows, new air conditioning, new furnace, etc. (home of unlimited value is an exempt asset as long as community spouse is living in it). 3. Community spouse can purchase new items for the home, such as new furniture, new appliances, new electronics, etc. (personal property of unlimited value is exempt). 4. Community spouse can purchase new items for him/herself, such as clothing, jewelry, etc. (personal property of unlimited value is exempt). 5. Institutionalized spouse and community spouse can purchase pre-paid funeral and burial arrangements (pre-paid funereal and burial arrangements are exempt assets). E. Convert Remaining Non-Exempt Counted Resources to a Stream of Income for the Community Spouse. 1. Medicaid-compliant annuity a. Irrevocable; b. Non-assignable; c. Actuarially sound (within the annuitant s life expectancy as determined by the Social Security Administration); d. Even, level payments with no balloon payments; and e. Naming your state as the primary beneficiary of the annuity contract. 2. Medicaid-compliant promissory note a. Irrevocable; b. Non-assignable; c. Actuarially sound (within the community spouse s life expectancy as determined by the Social Security Administration); and d. Even, level payments with no balloon payments. 2013 NAELA Annual Conference May: 2-4 Basics Workshop: May 1 Atlanta, GA Page: 11

F. Determine Amount of the Monthly Maintenance Needs Allowance for the Benefit of the Community Spouse. 1. Not every state is the same 2. In Wisconsin, the minimum monthly maintenance needs allowance ( MMMNA ) is $2,521.67. In our example above, Wife would be allowed to receive $921.67 of husband s monthly income to get her up to the MMMNA amount of $2,521.67 (because wife s income is $1,100 from social security and $500 from a pension for only $1,600, which is less than the MMMNA that she is allowed to have; $2,521.67 minus $1,600 equals $921.67). 3. In Wisconsin, if the community spouse has shelter costs (such as mortgage payments, real estate taxes, homeowner s insurance, and necessary utilities) that are greater than $756.50, the excess amount can be used to increase the MMMNA to an amount not greater than $2,898, unless a greater amount is ordered by an administrative law judge after a fair hearing. 4. If the community spouse has legitimate expenses that are greater than the MMMNA, a request for a fair hearing should always be considered. 5. If the combined monthly income is less than the MMMNA, the assets to income rule should be considered, which could allow the community spouse to keep additional assets in order to produce additional income to prevent spousal impoverishment to the greatest extent possible. 2013 NAELA Annual Conference May: 2-4 Basics Workshop: May 1 Atlanta, GA Page: 12