Understanding Trusts: Common Types of Trusts and How They Work

Question:  “Would you please provide us with some additional information about Trusts so that we can better understand what they are and incorporate them into our Estate Plan, if appropriate?”

Answer:  Trusts are a common planning tool that can be used to allow one person to hold property for the benefit of another.  There are different types of trusts with different benefits and drawbacks.  In fact, there are so many different types of trusts that it can often be confusing for people who are considering setting up a trust as part of their estate planning.  You should not be intimidated by trust-based planning.  With the help of a knowledgeable advisor, trusts can be an extremely beneficial component of a thorough retirement and estate plan.

Before we discuss types of trusts, it is important to understand what a trust is.  Every trust must satisfy four basic requirements.  First, someone must create the trust (Trustmaker).  This person is usually called the grantor, although some people might refer to the person as the donor, the settlor, or the trustor.  Second, some person or entity must agree to hold the assets that will go in the trust for the benefit of someone else.  This is the trustee.  There may be more than one trustee, and a trustee does not have to be an individual, a trustee can be a corporation with trust powers, such as a bank.  Third, some assets (money and/or property) must actually be held by the trustee.  These assets are called the trust principal or corpus.  The principal of the trust will likely change; it may be spent or invested and it may go up or down in value.  Fourth, someone must benefit from the trust.  This person is called the beneficiary.  There may be more than one beneficiary.  Aside from these four basic requirements, trusts can vary greatly depending on the manner in which they are created, what the assets are, and the purpose for which they are created.

There are two general categories of trusts: living trusts and testamentary trusts.  A living trust, also known as an “inter vivos” trust, is set up during a person’s lifetime.  A testamentary trust is set up in a will and established only after the person’s death.  It is subject to review and accounting to the probate court.

Living trusts can be divided further into two main types: revocable and irrevocable.  A revocable trust allows you to retain control over all of the assets in the trust and revoke or change the terms of the trust at any time.  This flexibility does have a cost, however.  A revocable living trust does not avoid estate taxes because you still own the property in the trust, although it can help to reduce expenses and avoid probate upon death.  An irrevocable trust, by contrast, generally cannot be revoked by the Trustmaker once it has been created.  You can specify the beneficiaries of the trust, how it will function, and who will serve as trustee.  But, you typically cannot make changes to the trust once it is established without the consent of the beneficiaries or another third party.  Because the assets in an irrevocable trust are no longer yours, the appreciated assets in the trust are not subject to estate taxes.  Irrevocable trusts can also be used to protect property from the claims of your creditors and those of the beneficiaries.

The trusts mentioned above are just some of the many types of trusts available.  There are also many more sophisticated uses of trusts that apply to specific situations.  Below is a list of just a few additional types of trusts (keep in mind that the names identify one use of the trust and not all of its uses):

  • Irrevocable Life Insurance Trusts- These trusts can be used to remove your life insurance from your taxable estate.  The proceeds from the policy can then be used to pay estate costs and provide your heirs with tax-free income.  However, once you have transferred your life insurance policy into this type of trust, you can no longer borrow against the policy or change the named beneficiary.
  • Credit Shelter Trusts (also known as Bypass Trusts or Family Trusts) – These trusts can be used to avoid estate taxes.  The grantor will leave assets up to the estate tax exemption to the trust through a provision in his or her will, then pass the rest of the estate to his or her spouse tax-free.  As an added benefit, even if the money in a credit shelter trust grows, it is never subject to estate tax.
  • Special Needs Trusts- Parents and family members of someone with special needs can establish this type of trust to provide for the well-being of the disabled family member while preserving the individual’s eligibility for government benefit programs.

If you have questions about trusts and how they might be incorporated into your retirement and estate plans, you should consult with a knowledgeable professional in your state, many of whom can be found on ElderCareMatters.com America’s National Directory of Elder Care / Senior Care Resources for Families.

Henry C. Weatherby, Esq., CLU, ChFC, CEBS
Weatherby & Associates, PC
Bloomfield, Connecticut
Connecticut State Coordinator, ElderCareMatters.com


Our Pennsylvania State Coordinator Answers Today’s Question about Estate Planning

Question:  What are the documents that should be included in a comprehensive  Estate Plan?

Answer:  A comprehensive estate plan should include the following documents, prepared by an attorney based on in-depth counseling which takes into account your particular family and financial situation:

A Living Trust can be used to hold legal title to and provide a mechanism to manage your property. You (and your spouse) are the Trustee(s) and beneficiaries of your trust during your lifetime. You also designate successor Trustees to carry out your instructions in case of death or incapacity. Unlike a will, a trust usually becomes effective immediately after incapacity or death. Your Living Trust is “revocable” which allows you to make changes and even to terminate it. One of the great benefits of a properly funded Living Trust is the fact that it will avoid or minimize the expense, delays and publicity associated with probate.

If you have a Living Trust-based estate plan, you also need a pour-over will. For those with minor children, the nomination of a guardian must be set forth in a will. The other major function of a pour-over will is that it allows the executor to transfer any assets owned by the decedent into the decedent’s trust so that they are distributed according to its terms.

A Will, also referred to as a Last Will and Testament, is primarily designed to transfer your assets according to your wishes. A Will also typically names someone to be your Executor, who is the person you designate to carry out your instructions. If you have minor children, you should also name a Guardian as well as alternate Guardians in case your first choice is unable or unwilling to serve. A Will only becomes effective upon your death, and after it is admitted by a probate court.

A Durable Power of Attorney for Property allows you to carry on your financial affairs in the event that you become disabled. Unless you have a properly drafted power of attorney, it may be necessary to apply to a court to have a guardian or conservator appointed to make decisions for you during a period of incapacitation. This guardianship process is time-consuming, expensive, emotionally draining and often costs thousands of dollars.

There are generally two types of durable powers of attorney: a present durable power of attorney in which the power is immediately transferred to your agent (also known as your attorney in fact); and a springing or future durable power of attorney that only comes into effect upon your subsequent disability as determined by your doctor. Anyone can be designated, most commonly your spouse or domestic partner, a trusted family member, or friend. Appointing a power of attorney assures that your wishes are carried out exactly as you want them, allows you to decide who will make decisions for you, and is effective immediately upon subsequent disability.

The law allows you to appoint someone you trust to decide about medical treatment options if you lose the ability to decide for yourself. You can do this by using a Durable Power of Attorney for Health Care or Health Care Proxy where you designate the person or persons to make such decisions on your behalf. You can allow your health care agent to decide about all health care or only about certain treatments. You may also give your agent instructions that he or she has to follow. Your agent can then ensure that health care professionals follow your wishes. Hospitals, doctors and other health care providers must follow your agent’s decisions as if they were your own.

A Living Will informs others of your preferred medical treatment should you become permanently unconscious, terminally ill, or otherwise unable to make or communicate decisions regarding treatment. In conjunction with other estate planning tools, it can bring peace of mind and security while avoiding unnecessary expense and delay in the event of future incapacity.

Some medical providers have refused to release information, even to spouses and adult children authorized by durable medical powers of attorney, on the grounds that the 1996 Health Insurance Portability and Accountability Act, or HIPAA, prohibits such releases. In addition to the above documents, you should also sign a HIPAA authorization form that allows the release of medical information to your agents, your successor trustees, your family and other people whom you designate.

James J. Ruggiero, Jr., Esq.
Pennsylvania State Coordinator,
ElderCareMatters.com


ElderCareMatters.com continues to grow to help families across America

Question:  “My family has trusted ElderCareMatters.com for some time now to help us in locating the elder care / senior care resources that we need in order to effectively plan for and deal with our Elder Care Matters.  Recently, my sister searched a state where there were no Elder Care Professionals listed on ElderCareMatters.com under the service category that was needed.  Can you please tell us what ElderCareMatters.com is doing to continue to attract competent Elder Care Professionals to its site?”

Answer:  ElderCareMatters.com is committed to providing all families across America with access to TOP Elder Care Professionals in 86 different elder care services who can help them plan for and deal with their elder care matters.  We constantly strive to provide families like yours with the professional resources that they need in order to make good decisions about their family’s elder care matters.  With this in mind, we encourage ALL competent Elder Care Professionals across America to be listed on ElderCareMatters.com .

Now, in order to “get the word out” to more professionals across America and to encourage them to be listed on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families – we are recruiting State Coordinators to help us “spread the word” to every State and to every Elder Care Professional within the 50 states plus the District of Columbia.  Our State Coordinators (who are some of America’s TOP Elder Care Professionals themselves) will help us grow our national Elder Care Professional Alliance so that families (like YOURS) can get the help they need from one online resource that is truly committed to helping them with one goal:  TO HELP FAMILIES PLAN FOR AND DEAL WITH THEIR ELDER CARE MATTERS!

Thank you to the thousands of families like yours across America who rely on ElderCareMatters.com to help them find the information they need in order to make good decisions about a wide range of Elder Care Matters.  And we are committed to continuing our efforts at ElderCareMatters.com to encourage ALL competent Elder Care Professionals across America to be listed on this National Directory of Elder Care / Senior Care Resources for Families.

Phillip G. Sanders, MBA, MSHA, CPA

psandersFounder & CEO of ElderCareMatters.com


Today’s Elder Care Q&A is about Medicaid Myths

Question:  “I’ve heard many rumors about Medicaid, such as 1) You cannot make a gift and then apply for Medicaid without waiting five years; 2) To qualify for Medicaid all of a couples’ income must go to the nursing home; 3) The spouse of the elder applying for Medicaid must “Spend Down” all of his/her assets except for the couples’ home.  Are these true?”

Answer:  Most of these are myths.  Below are some of the most common myths about Medicaid.  Hope this information helps you and your family.

1. Myth: “I have to give away everything I own to get Medicaid.”

The Truth: Basically, a person is permitted to own some property, and still be eligible for Medicaid. The trick comes in knowing what is “countable” and what is “non-countable” under the Medicaid rules. For a married couple or single person this includes, for example, equity in one home up to $500,000, with certain exceptions to the equity limitation. Whether you are married or not, certain types of prepaid burial contracts are non-countable. There are many other types of “non-countable property,” such as extensive funeral and burial space planning and some types of annuities. The bottom line is, you don’t need to be completely without assets to be Medicaid eligible.

2. Myth: “I can’t give anything away and get Medicaid.”

The Truth: In some cases, the Medicaid rules provide that a person can be disqualified for giving away property. However, a lot depends on what is given away, to whom, and when. So again, it’s complicated and it changes all the time. Some asset transfers are penalized under the Medicaid rules and some are not. For instance, transfers: to a blind or disabled child, to a caretaker child, between spouses and for the sole benefit of a spouse are allowed transfers under Medicaid law.

3. Myth: “I have to wait 5 years after giving anything away, to get Medicaid.”

The Truth: The disqualification isn’t always 5 years long and sometimes there is no disqualification at all. True, there is a 5-year “lookback” for some asset transfers under the Medicaid rules. This means that the Medicaid agency will look back at all transfers of property, including sales for less than market value. However, the rules penalizing transfers do not apply to all transfers. See #2 above.

4. Myth: “I can keep all our marital property and my inherited property when my spouse gets Medicaid.”

The Truth: When a married person applies for Medicaid, assets in either or both spouse’s name are considered by the Medicaid agency. However, some assets won’t be “countable” and you may keep some as an asset allowance if your spouse enters a nursing home. In fact, there are very special techniques only available to a well community spouse that can protect all of a married couples assets, including the family cottage. See #1 above.

5. Myth: “If I put my property into my spouse’s name, I will be eligible for Medicaid.”

The Truth: Assets are counted, regardless of which spouse’s name they are in. However, the healthy spouse will be given several months to re-title assets from the name of the spouse in the nursing home, into the name of the healthy spouse. The Medicaid agency explains these rules when the nursing home spouse gets into the Medicaid program.

6. Myth: “Medicare will cover my nursing home bill.”

The Truth: Medicare only covers a small amount of the nursing home care provided in this country. Many older people are surprised to learn this. In general, there are 20 days of full coverage if you go into the nursing home after at least three days in the hospital, and are receiving skilled care (not intermediate level care). Then, if you still need skilled care, you can get up to 80 days of partial coverage from Medicare. After that, you will either pay out-of-pocket, or get Medicaid, unless you have private long-term care insurance.

7. Myth: “If I enter a nursing home as a private pay resident, I must use up my assets before I can get Medicaid.”

The Truth: You are not required to use your assets to private pay for the nursing home care. However, some nursing homes might try to make you believe that you do have to do this. They are paid less under the Medicaid program than they collect from private pay patients. Some people seek advice from an elder law attorney to find out how they can become Medicaid eligible before having spent a significant part of all of their assets on the private pay rate.

8. Myth: “I can only ‘spend-down’ my assets on medical or nursing home bills.”

The Truth: See # 7 above. Nursing homes may tell you that you have to spend your savings on the private pay rate, before applying for Medicaid, but this is not true. In fact, it’s against the law for them to tell you this!

9. Myth: “My power-of-attorney automatically has the power to take property out of my name, if I ever need Medicaid.”

The Truth: Your best tool to be able to plan for Medicaid eligibility, should you ever need it, is to sign a general, durable power of attorney that includes a “gifting” power. Your agent under the power of attorney will only be able to re-title your assets if your power of attorney contains a “power to make gifts.” Most powers of attorney don’t contain this, so you might want to ask your attorney to add it. The court procedures to transfer assets without a “gifting power” can be expensive and time-consuming, and may not allow the type of asset protection that many people would like to accomplish.

Without a “gifting power” your agent is generally limited to spending your money on your bills and selling your assets to generate cash, to pay your bills. A “gifting power” is recommended for people who want to become eligible for Medicaid and not be limited to the “non-countable” assets allowed under that program. Some powers of attorney contain this “gifting” provision, but it’s limited to $10,000 or $11,000 per year. This figure is too limited to do effective Medicaid planning, and is related to a completely different type of legal issue. (See #11 below, about the federal estate tax.)

One more word about the “gifting power.” You should require your agent under your power of attorney to consult with an attorney experienced in Medicaid law before making any asset transfers.

10. Myth: “All property transfers will cause me to be disqualified from Medicaid.”

The Truth: Not all transfers of property will cause a person to become ineligible for Medicaid. See #2.

11. Myth: “I can only give away $10,000 per year under Medicaid rules.”

The Truth: This is a rule under federal estate and gift tax law, not under Medicaid law. (Actually, the amount has changed to $12,000, for federal purposes.) In 2002, this tax law only applies to people who have over about $1 million in assets. People who would pay federal estate tax should not worry about getting Medicaid. In fact, if more millionaires paid federal estate tax, we could cover the costs of nursing home care for the rest of us! Right now, under NEW Michigan Medicaid law a person will be disqualified from getting Medicaid for one day for every approximate $200 given away, in most circumstances. The penalty period will begin on the date that an individual would otherwise have been eligible for long term care services (Medicaid as well as the Home Based Community Waiver) but for the asset transfers, rather than the date of the asset transfer itself. Simply put, Medicaid will penalize from the date of the Medicaid application instead of the date of the gift. This is a change in well settled Medicaid law and an enormous trap for the uninformed.

For example, a semi-healthy grandmother gives her granddaughter $20,000 to assist with her college education. Three years later, the grandmother has a stroke and requires nursing home care. Over the next eighteen months, she spends her life savings on her own care. Forty-eight months after the gift, the grandmother has depleted her assets and applies for Medicaid. She will be penalized for about four months before she will receive Medicaid benefits, even though she has no money remaining to pay for her care. How her care will be paid for during that four month period of ineligibility is anyone’s guess.

12. Myth: “My income may have to be used to pay my spouse’s nursing home bill.”

The Truth: This is not true in Michigan or the majority of states.

13. Myth: “All of my spouse’s income must be used to pay the bill if my spouse is on Medicaid in a nursing home.”

The Truth: The law allows you to keep a portion of your spouse’s income if your income is below certain limits. In addition to this allowance, you may be entitled to a greater allowance if the cost of maintaining your home exceeds a certain amount or if a state hearing officer or a judge orders a greater allowance.

14. Myth: “I can hide my assets and get eligible for Medicaid.”

The Truth: Intentional misrepresentation in a Medicaid application is a crime and can be costly. The IRS shares any information concerning income or assets you have with the county department of social services. You or whoever applied may have to pay Medicaid back to avoid prosecution.

15. Myth: “Medicaid rules that applied to my neighbor when he went in a nursing home will also apply to me.”

The Truth: Medicaid rules change, and change often, so don’t count on the law that applied to your neighbor still applying to you. Also, there may have been facts about your neighbor’s situation that you just don’t know. It’s best to have your situation analyzed by a competent elder law attorney.

16. Myth: “Medicaid will take my home.”

The Truth: Yes. It is true Michigan now has an Estate Recovery law but with proper planning by an expert attorney the home can still be saved. Estate Recovery means that people who receive Medicaid benefits for nursing home level care can be subject to repaying the state for the costs of their care after they die. Typically, that means a claim against the home of the Medicaid beneficiary.

The Estate Recovery law is full of traps for those that do not have the foresight to plan ahead with an experienced elder law and estate planning attorney. With proper planning you can still save your home!

Don L. Rosenberg, Attorney and Counselor
The Center for Elder Law
Troy, Michigan
Member of the national Panel for Elder Care Matters – ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families


The impact of gifting on Medicaid Eligibility

Question:  “In preparation for Mom needing to rely on Long Term Care Medicaid benefits in the future, we have been gifting to a recently created Trust so that we can reduce the amount of countable resources that belong to our mother. Is this something that we should be doing?”

Answer:  The most likely answer to your question is that is not something you should be doing.  First, was this transfer and Trust plan something that an experienced Elder Law Attorney assisted you in setting up? An experienced Elder Law Attorney would know that certain actions are good strategies in one situation but huge mistakes in different circumstances.  Based upon the wording of your question I assume that you did not in fact get the assistance of an Elder Law Attorney, and if that is in fact correct it is highly unlikely that you have properly structured an asset preservation strategy.  The answer to your question depends upon a number of variables. Generally, the gifting of monies during the 5 year period prior to your mother needing Medicaid assistance is a very bad idea unless it is done pursuant to one of a few very sophisticated planning strategies which an Elder Law Attorney recommended after an in-depth analysis of your mother’s personal and financial circumstances.

The most important issue is the amount of time you believe your mother has until she will need long term care and how much money has been left in her name to pay for that period of time. If your Mother is 60 and in good health, the ability to safely transfers assets without impacting Medicaid is probably a reasonable risk.  On the other hand if your mother is 80 and in poor health transfers of funds pose a substantial risk unless enough money remains in your mother’s name to pay for five years of care should she need to go into a skilled care facility next week.  The financial calculations must be quite detailed and cover numerous possible future scenarios to make sure whatever is done, your mother is protected.

Even if the financial calculations were done properly, there is a real issue as to where the assets are being transferred and for whose benefit.  If the Trust is a revocable trust in your mother’s name and for your mother’s benefit, or a revocable Trust or irrevocable trust where your mother is entitled to receive  or request the payment of the trust principal to herself, then most likely the  money transferred will still be considered your mother’s for purpose of Medicaid.  This can be especially problematic if the money is considered your mother’s for Medicaid purposes, but the terms of the Trust don’t allow the money to be used for your mother’s long term care.

If your mother has sufficient funds remaining in her name, sufficient time prior to needing long term care and a properly drafted trust, it is possible to create an asset preservation plan which would work. This is done through the use of what is known as an Irrevocable Income Only Trust. These are complex Trusts and will be closely scrutinized at the time of application for Medicaid.

Any error in the financial analysis or in the terms of the Trust could result in a denial of Medicaid or a substantial penalty, and leave your mother in a very precarious situation.

This is not the type of planning that should be done without the assistance of an experienced Elder Law Attorney.  An experienced Elder Law Attorney  will understand that he or she represents your mother, and the primary obligation is to protect your mother and that any asset protection must be done with full disclosure and in full compliance with the law. If you did not have the assistance of an Elder Law Attorney in creating the Trust and formulating your asset preservation strategy, then it is essential that you meet with an experienced Elder Law Attorney as soon as possible to review and advice your family as to any necessary modifications.

One excellent source for locating an Elder Law Attorney near you is ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for families.

James C. Siebert, Attorney at Law
Arlington Heights, Illinois  60004
Partner Member of the national ElderCare Matters Alliance, Illinois chapter


IRS to Recognize Same-Sex Marriages for all Federal Tax Purposes

Question:  We have heard that the Internal Revenue Service (IRS) will now recognize Same-Sex Marriages for all Federal Tax Purposes. Would you please tell us more about this?

Answer:  Since the Supreme Court struck down Section 3 of the federal Defense of Marriage Act in June, federal agencies have begun updating regulations to conform to the decision.  On August 29, the IRS and the Treasury Department issued Revenue Ruling 2013-17.  This is a joint ruling stating that same-sex couples legally married in any jurisdiction that recognizes the marriage will be treated as legally married for all federal tax purposes.  This is true even if the state where they live does not recognize the marriage.  The ruling will not apply to couples in civil unions or domestic partnerships.

There are many federal tax provisions involving marital status, all of which will be affected by this new ruling.  These provisions include:

Filing status;

Claiming personal exemptions;

Dependency exemptions;

Taking the standard deduction;

Employee benefits;

Contributing to an IRA; and

Claiming the earned income tax credit or child tax credit.

The ruling will also affect estate and gift taxes. This means that married same-sex couples can take advantage of the marital deduction, portability, and gift-splitting.

The marital deduction allows spouses to transfer as much as they want to each other, during life or at death, without having to pay any federal estate or gift tax, as long as the recipient spouse is a U.S. Citizen.  Portability is the ability of widows and widowers to add the unused estate tax exclusion of the spouse who died most recently to their own.  Gift splitting allows spouses to combine the annual exclusion (currently $14,000) from the gift tax and give either $14,000 each, $28,000 from a joint account, or $28,000 from one of their individual accounts.

Married same-sex couples will now be able to enjoy federal tax benefits previously unavailable to them, but they may also face marriage penalties.  Marriage penalties result from the combination of progressive tax rates, which impose higher rates on higher incomes.  Combining incomes can result in some income being taxed at higher rates than if spouses’ incomes were taxed separately.  This is more likely to occur if both spouses have similar incomes.  Couples in which one spouse earns most or all of the income are more likely to receive a marriage tax savings.  This is because joint filing shifts the higher earning spouse’s income into a lower tax bracket.  Couples who would have been eligible for a refund can file amended returns for prior tax years up until the statute of limitations has run.  The statute of limitations is generally three years from the date the return was filed or two years from the date the tax is paid, whichever is later.  Couples are not required to file amended returns.  Due to this fact, couples will not owe tax for prior years where they filed single as federal law at that time required.

In addition, the new ruling may create additional work for married same-sex couples living in one of the 37 states that do not currently recognize same-sex marriage.  Previously, these couples would have filed both federal and state tax returns as individuals.  Now legally married couples will have to file federal returns as a married couple but will likely be required to continue filing their state tax returns as single individuals.

Same-sex couples should consult with their advisors to determine how these new rules will impact them.

Henry C. Weatherby, Esq., CLU, ChFC, CEBS
Weatherby & Associates, PC
Bloomfield, Connecticut  06002
State Coordinator of the national ElderCare Matters Alliance, Connecticut chapter


Can Community Spouses ‘Just Say No’ to Paying for Nursing Home Care for their Institutionalized Spouses?

Question:  “We have heard that Medicaid won’t pay a dime if the “community spouse” – the spouse not in the nursing home – has more than a certain amount of countable assets. (A number that changes periodically.) However, we are now hearing about something called “spousal refusal,” whereby the community spouse can retain all of his or her assets by simply refusing to pay the nursing home bills of the institutionalized spouse.  Can you tell us about this?  My parents live in Connecticut.”

Answer:  Often, a Medicaid applicant needing nursing home care will have a spouse who is able to continue living at home in the community (“Community Spouse”).  There are strict income and asset guidelines regarding Medicaid eligibility when there is a community spouse.  These guidelines prevent couples with significant assets from making one spouse eligible for Medicaid.  However, federal Medicaid law has been interpreted to create an opportunity for the Community Spouse to keep all of his or her assets simply by refusing to pay the nursing home bills of the institutionalized spouse.

The federal provision is known as “just say no” or the spousal refusal doctrine.  Under this doctrine, if a spouse refuses to contribute his or her income or resources to pay the nursing home bill of the spouse applying for Medicaid, the ill spouse may still be able to qualify for Medicaid.  The ill spouse must properly “assign” the right of support to the state.  Once there has been a valid assignment of support rights, the Medicaid agency is required to determine the eligibility of the nursing home spouse based solely on the applicant’s own assets.  The assets of the Community Spouse must be disregarded when making this eligibility determination.  When such a situation occurs, the Medicaid agency can begin a legal proceeding to force the Community Spouse to pay the state back for the care of the institutionalized spouse.   This process does not always happen because of the burden such a proceeding puts on the agency.

The spousal refusal doctrine has only been adopted by two states, New York and Florida.  In 2005 a U.S. Court of Appeals in Connecticut upheld the right of spousal refusal in a case called Morenz v. Wilson-Coker.  This decision allowed citizens of Connecticut to also take advantage of this doctrine.

The Connecticut legislature responded to the Morenz decision by revising the Connecticut General Statutes to prevent the use of the spousal refusal doctrine.  Before Morenz, the statute stated that an assignment of support rights to the state was valid “provided the spouse of such person is unwilling or unable to provide the information necessary to determine eligibility for Medicaid.” Conn. Gen. Stat. § 17b-285 (2005).  The revised statute allows assignment of support rights only if:

(1) the assets of the institutionalized person or person in need of institutionalized care do not exceed the Medicaid program asset limit; and

(2) the institutionalized person or person in need of institutionalized care cannot locate the community spouse; or the community spouse is unable to provide information regarding his or her own assets.

The statutory change made in response to Morenz, if valid, significantly limits the ability of Connecticut residents to take advantage of the spousal refusal doctrine.  This became a pivotal issue in the case of Fortmann v. Starkowski, a spousal refusal case brought following the statutory revision.  The husband assigned his rights of support to the state and was then determined to qualify for Medicaid.  As a result, none of the assets he had previously transferred to his wife were used to pay the nursing home bill.

Assigning the right of support to the state essentially puts the burden of obtaining payment for nursing homes care onto the state.  At issue in the Fortmann case was whether the limitations on assignment of support rights in the Connecticut law conflicted with the federal provision, in which case the state law would be invalidated.

The court’s final decision in Fortmann determined that Connecticut’s revised statute was valid.  Consequently, Connecticut residents can no longer use the spousal refusal doctrine if the community spouse’s location is known and he or she can provide information about his or her assets.  The court interpreted the federal law as giving states the power to define for themselves what constitutes a valid assignment of support by a Medicaid applicant.  Therefore, Connecticut could freely determine that a valid assignment could only occur when a spouse’s location was unknown or the spouse could not provide required information about his or her assets.

To locate thousands of professionals across America who help families with a wide range of Elder Care Matters, go to: www.ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

Henry C. Weatherby, Esq., CLU, ChFC, CEBS
State Coordinator of the national ElderCare Matters Alliance, Connecticut chapter


Caregivers Desperately Seeking Resource to Locate Elder Care Professionals

Question:  Our family is now dealing with elder care issues for both sets of parents, and we desperately need help with a host of elder care matters, including Elder Law, Geriatric Care Management, Home Care, Medication Management, and Financial Management.  When will ElderCareMatters.com include ALL Elder Care Professionals in our State so that we can simply search this one Elder Care website to find ALL the help we need with our family’s Elder Care Matters?  This would truly simplify our LIVES.

Answer:  ElderCareMatters.com was founded more than a decade ago with one objective in mind:  To provide families across America with a Single Internet Source to help them plan for and deal with their Elder Care Matters.  We now offer families easy access to thousands of Elder Care Professionals across America, and we are continually striving to include ALL competent Elder Care Professionals on ElderCareMatters.com.  To this end, we are  now enlisting the assistance of our ElderCare Matters Partner Members to serve as State Coordinators, with the goal of  helping us “Get the Word Out” to ALL Elder Care Professionals in ALL 50 States plus the District of Columbia.  Not every Elder Care Professional who applies will be accepted for inclusion on ElderCareMatters.com, but we agree with you that ALL competent Elder Care Professionals should be included on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

Thank you for your support of ElderCareMatters.com.

Phillip G. Sanders, MBA, MSHA, CPA
Founder & CEO of ElderCare Matters, LLC
ElderCareMatters.com


What Is the Difference Between a Will and a Living Will?

Answer:  A will deals with assets, whereas a living will deals with medical care. Many States have done away with the so-called living will and replaced it with the advance health-care directive (“AHCD”). An AHCD can accomplish a variety of objectives, from saying who will make health care decisions for you if you cannot communicate with your doctors, to saying under what circumstances conventional health care will be withheld from you so that nature will be allowed to take its course.

Scott A. Makuakane, Esq., CFP
Est8Planning Counsel LLLC
State Coordinator of the national ElderCare Matters Alliance, Hawaii chapter


Today’s Q&A on ElderCareMatters.com: "Are Medicaid Funds portable between States?"

Question: Can we use Mom’s Medicaid funds from one state if we were to relocate her to a nursing home in a different state so that she would be closer to her children?  Specifically, are Medicaid funds portable between states?

Answer:  Unfortunately, your Mother cannot use the benefits she may be entitled to receive from State A to pay for her care in State B.  Medicaid is a program that is jointly funded by the federal government and the individual states. Since the individual states pay a large portion of the Medicaid costs, one of the requirements to qualify for Medicaid is that you must be a resident of that State.  State A has no interest in paying for the care of  individuals in other States.

If you were asking whether your Mother could get qualified in her current State, and then transfer the eligibility to the State where her children live, the answer to that is also no.  Medicaid is a state-run program which means that eligibility requirements vary from one state to the next. While the federal government sets minimum and maximum standards for the Medicaid program, there is a fairly wide range in between where each individual State can set its standards. That means your Mother may qualify in one State but not in another.

If you plan on moving your Mother to another State, I would recommend that you do that prior to applying for Medicaid. Your first step would be to contact and retain an experienced Elder Law Attorney in the State in which you intend to move your Mother.  Initially the Attorney can advise you whether your Mother meets the eligibility requirements in that State.  Assuming your Mother does qualify, then the Elder Law Attorney can help your Mother establish residency in the new State and apply for Medicaid coverage.

I would recommend that you take a look at ElderCareMatters.com to find a list of Elder Law Attorneys near you who can help you with your elder care matters.  ElderCareMatters.com is a FREE, online national Directory of Elder Care / Senior Care Resources for Families.

I hope this helps.

James C. Siebert, Attorney at Law
The Law Office of James C. Siebert & Associates
Arlington Heights, Illinois
Member of the national ElderCare Matters Alliance, Illinois chapter


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