ELDER LAW
Incapacity Planning | Veteran Benefits | Guardianship | End of Life Decisions
Florida elder law planning focuses on the special legal needs of Sarasota and Manatee County Florida's elderly population. While some elderly Florida residents legal needs involve estate planning, Florida elder law also includes guardianship law (administration & litigation), disability and incapacity planning, gift and tax planning, long-term care and retirement planning and end of life decisions. I have been assisting Sarasota (Sarasota, Venice, Osprey, Englewood, Casey Key, Bird Key, Siesta Key & Longboat Key) and Manatee (Bradenton, Lakewood Ranch, University Park River Club, River Wilderness, Anna Maria Island, Parish, Ellenton & Palmetto) County Florida clients since 1998. Please feel free to contact me with your questions.
MEDICAID PLANNING
Congress has established a period of ineligibility for Medicaid for those who transfer assets. The DRA significantly changed rules governing the treatment of asset transfers. For transfers made prior to enactment of the DRA on February 8, 2006, state Medicaid officials will look only at transfers made within the 36 months prior to the Medicaid application (or 60 months if the transfer was made to or from certain kinds of trusts). But for transfers made after passage of the DRA the so-called "look back" period for all transfers is 60 months. While the look back period determines what transfers will be penalties, the length of the penalty depends on the amount transferred. The penalty period is determined by dividing the amount transferred by the average monthly cost of nursing home care in the state. Another significant change in the treatment of transfers made by the DRA has to do with when the penalty period created by the transfer begins. Under the DRA, the 20-month period will not begin until (1) the transferor has moved to a nursing home, (2) he has spent down to the asset limit for Medicaid eligibility, (3) has applied for Medicaid coverage, and (4) has been approved for coverage but for the transfer. For instance, if an individual transfers $100,000 on April 1, 2014, moves to a nursing home on April 1, 2015, and spends down to Medicaid eligibility on April 1, 2016, that is when the 20-month penalty period will begin, and it will not end until December 1, 2016. How this change is implemented from state-to-state will be worked out over the next few years.
Spending Down: Applicants for Medicaid and their spouses may protect savings by spending them on non-countable assets. These expenditures may include: prepaying funeral expenses, paying off a mortgage, making repairs to a home, replacing an old automobile, updating home furnishings, paying for more care at home, or even purchasing a new home. In the case of married couples, it is often important that any spend-down steps be taken only after the unhealthy spouse moves to a nursing home if this would affect the community spouse's resource allowance.
Immediate Annuities: Immediate annuities can be ideal planning tools for spouses of nursing home residents. It is a contract with an insurance company under which the consumer pays a certain amount of money to the company and the company sends the consumer a monthly check for the rest of his or her life. In most states the purchase of an annuity is not considered to be a transfer for purposes of eligibility for Medicaid, but is instead the purchase of an investment. It transforms otherwise countable assets into a non-countable income stream. As long as the income is in the name of the community spouse, it's not a problem. In order for the annuity purchase not to be considered a transfer, it must meet three basic requirements: (1) It must be irrevocable - you cannot have the right to take the funds out of the annuity except through the monthly payments; (2) You must receive back at least what you paid into the annuity during your actuarial life expectancy; and (3) If you purchase an annuity with a term certain it must be shorter than your actuarial life expectancy; (4) Under the DRA, the state must be named the remainder beneficiary up to the amount of Medicaid paid on the annuitant's behalf.
Permitted Transfers: While most transfers are penalized with a period of Medicaid ineligibility of up to five years, certain transfers are exempt from this penalty. Even after entering a nursing home, you may transfer any asset to the following individuals without having to wait out a period of Medicaid ineligibility: Your spouse (but this may not help you become eligible since the same limit on both spouse's assets will apply)
Your child who is blind or permanently disabled. Into trust for the sole benefit of anyone under age 65 and permanently disabled. In addition, you may transfer your home to the following individuals (as well as to those listed above): Your child who is under age 21. Your child who has lived in your home for at least two years prior to your moving to a nursing home and who provided you with care that allowed you to stay at home during that time. A sibling who already has an equity interest in the house and who lived there for at least a year before you moved to a nursing home.
LINKS & ARTICLES:
Tax-free planning opportunity for long-term care expenses
