Effective 3/2/21, NYS will impose a 2.5 year lookback period on transfers prior to applying for Community Medicaid. If you missed our recent cocktail hour legal update, click here for attendees’ Qs and some practical tips:
- 1. I thought the Look-back is 5 years? Yes, for Nursing Home Medicaid applications. Homecare Medicaid, on the other hand, currently has NO lookback period. This will change 3/2/21. This means that we have a narrow window within which to protect assets and apply for Community Medicaid with NO lookback and resultant penalty period.
- 2. The house is already protected, right? Not quite…. One’s interest in the primary residence is exempt for purposes of Medicaid Applications only. The house is not exempt from Medicaid recovery upon the death of the Medicaid recipient and the surviving spouse. This is a very tricky rule. Many well-intentioned friends and neighbors tell each other that the house is “exempt”. Folks then leave it unprotected, and the children later learn that NYS gets the house!
- 3. A Trust sounds too complicated. Can’t I simply put my house in the kids’ names, to protect it from future possible long term care expenses? NO!!! A simple transfer of the house to the children will result in the loss of your STAR property tax exemptions. It will also result in negative capital gains consequences to the kids. Last but not least, the house will be exposed to the children’s future possible liabilities, such as divorce claims. To prevent a future possible ex-daughter-in-law from having an ownership interest in your home, brush up on some trust basics:
- 4. Does a Living or Revocable Trust protect one’s assets in the event that Long Term Care is needed? NO- Think about it. A Revocable Trust allows me to serve as my own Trustee and have access to the trust assets whenever I wish. How, then, can I turn around and expect a Nursing Home to disregard the assets in the trust? Because I can get ‘my hot little hands’ on the assets whenever I wish, then so can a nursing home! Contrary to the claims of many Revocable Trust promoters, (my mother is a regular at these seminars for the free refreshments) this estate planning tool should not be used if one’s goal is to protect assets from future possible health care costs.
- 5. Is it possible to protect one’s assets without using a totally Irrevocable Trust that can never be changed? YES. It is true that an Irrevocable Trust is the best way to protect one’s assets from being decimated by long term care expenses. What comes as a surprise to many, though, is that the trust does not have to be totally irrevocable. I view trust drafting as an art form. A properly drafted trust will provide the person creating it (the Grantor) with as much retained power as possible. If our goal is to protect the home from future possible Long Term Care expenses, then the Grantor does not have to give up all ownership rights. The terms of a PROPERLY DRAFTED Asset Protection Trust will allow me to change the person I’ve selected as my trustee at any time. This power comes in handy in the event that I have a falling out with my Trustee or they move away. It is also a good idea to retain the ability to change one’s named beneficiaries. I may initially name my 3 children to be equal beneficiaries upon my death. Life’s curve balls, however, may cause me to want to change this in time to come. If a child were to predecease me, I want to be able to give his or her share of the trust to my grandchildren, rather than to an in-law. A good trust will provide that the real estate can still be sold, but ONLY with my written permission. Will the trust cause us to lose property tax exemptions? No (Thanks to a bill I sponsored in 1998). The best part about the Asset Protection Trust, is that upon my death, my named beneficiaries receive all trust assets without probate, and all built in capital gains are totally eliminated.
- 6. My parents have pensions and SS each month. I heard that they won’t be eligible for Medicaid at home. It is true that Medicaid rules have a very low income threshold. HOWEVER-we can protect excess income for household use by creating a so-called ‘Pooled Trust’