You may be afraid of losing your home if you have to enter a nursing home and apply for Medicaid. While this fear is well-founded, transferring the home to your children is usually not the best way to protect it.
Although you generally do not have to sell your home in order to qualify for Medicaid coverage of nursing home care, the state could file a claim against the house after you die. If you get help from Medicaid to pay for the nursing home, the state must attempt to recoup from your estate whatever benefits it paid for your care. This is called “estate recovery.” If you want to protect your home from this recovery, you may be tempted to give it to your children. Here are three reasons not to:
1. Medicaid ineligibility. Transferring your house to your children (or someone else) may make you ineligible for Medicaid for a period of time. The state Medicaid agency looks at any transfers made within five years of the Medicaid application. If you made a transfer for less than market value within that time period, the state will impose a penalty period during which you will not be eligible for benefits. Depending on the house’s value, the period of Medicaid ineligibility could stretch on for years, and it would not start until the Medicaid applicant is almost completely out of money.
There are circumstances under which you can transfer a home without penalty, however, so consult a qualified elder law attorney before making any transfers. You may freely transfer your home to the following individuals without incurring a transfer penalty:
- Your spouse
- A child who is under age 21 or who is blind or disabled
- Into a trust for the sole benefit of a disabled individual under age 65 (even if the trust is for the benefit of the Medicaid applicant, under certain circumstances)
- A sibling who has lived in the home during the year preceding the applicant's institutionalization and who already holds an equity interest in the home
- A “caretaker child,” who is defined as a child of the applicant who lived in the house for at least two years prior to the applicant's institutionalization and who during that period provided care that allowed the applicant to avoid a nursing home stay.
2. Loss of control. By transferring your house to your children, you will no longer own the house, which means you will not have control of it. Your children can do what they want with it. In addition, if your children are sued or get divorced, the house will be vulnerable to their creditors.
3. Adverse tax consequences. Inherited property receives a “step up” in basis when you die, which means the basis is the current value of the property. However, when you give property to a child, the tax basis for the property is the same price that you purchased the property for. If your child sells the house after you die, he or she would have to pay capital gains taxes on the difference between the tax basis and the selling price. The only way to avoid some or all of the tax is for the child to live in the house for at least two years before selling it. In that case, the child can exclude up to $250,000 ($500,000 for a couple) of capital gains from taxes.
There are other ways to protect a house from Medicaid estate recovery, including putting the home in a trust. To find out the best option in your circumstances, consult with your elder law attorney. To find one near you, go here: https://www.elderlawanswers.com/USA-elder-law-attorneys.
Many people, especially seniors, see joint ownership as an easy way to avoid probate and plan for incapacity, but there are major drawbacks to joint accounts.
When people own property as joint tenants each person has an equal ownership interest in the property. If one joint tenant dies, his or her interest immediately ceases to exist and the other joint tenant owns the entire property. Joint ownership of investment and bank accounts can be a cheap and easy way to avoid probate since joint property passes automatically to the joint owner at death. In addition, joint ownership can also be an easy way to plan for incapacity since the joint owner of accounts can pay bills and manage investments if the primary owner falls ill or suffers from dementia. These are all true benefits of joint ownership, but three potential problems with joint ownership:
- Risk. Joint owners of accounts have complete access and the ability to use the funds for their own purposes. Many children who are caring for their parents take money in payment without first making sure the amount is accepted by all the children. In addition, the funds are available to the creditors of all joint owners, so if the child got divorced or was sued, the money could be available to the child's creditors. Similarly, if a joint owner applied for public benefits or financial aid, the money would be considered as belonging to all the joint owners.
- Inequity. If a senior has one or more children on certain accounts, but not all children, at her death some children may end up inheriting more than the others. While the senior may expect that all of the children will share equally, and often they do in such circumstances, there's no guarantee. People with several children can maintain accounts with each, but they will have to constantly work to make sure the accounts are all at the same level, and there are no guarantees that this constant attention will work, especially if funds need to be drawn down to pay for care.
- The Unexpected. A system based on joint accounts can really fail if a child passes away before the parent. Then it may be necessary to seek conservatorship to manage the funds or they may ultimately pass to the surviving siblings with nothing or only a small portion going to the deceased child's family. For example, a mother put her house in joint ownership with her son to avoid probate and Medicaid’s estate recovery claim. When the son died unexpectedly, the daughter-in-law was left high and dry despite having devoted the prior six years to caring for her husband's mother.
Joint accounts do work well in two situations. First, when a senior has just one child and wants everything to go to him or her, joint accounts can be a simple way to provide for succession and asset management. It has some of the risks described above, but for many clients the risks are outweighed by the convenience of joint accounts.
Second, it can be useful to put one or more children on one's checking account to pay customary bills and to have access to funds in the event of incapacity or death. Since these working accounts usually do not consist of the bulk of a client's estate, the risks listed above are relatively minor.
For the rest of a senior's assets, wills, trusts and durable powers of attorney are much better planning tools. They do not put the senior's assets at risk. They provide that the estate will be distributed as the senior wishes without constantly rejiggering account values or in the event of a child's incapacity or death. And they provide for asset management in the event of the senior's incapacity.
Social Security survivor's benefits provide a safety net to widows and widowers. But to get the most out of the benefit, you need to know the right time to claim.
While you can claim survivor's benefits as early as age 60, if you claim benefits before your full retirement age, your benefits will be permanently reduced. If you claim benefits at your full retirement age, you will receive 100 percent of your spouse's benefit or, if your spouse died before collecting benefits, 100 percent of what your spouse's benefit would have been at full retirement age. Unlike with retirement benefits, delaying survivor's benefits longer than your full retirement age will not increase the benefit. If you delay taking retirement benefits past your full retirement age, depending on when you were born your benefit will increase by 6 to 8 percent for every year that you delay up to age 70, in addition to any cost of living increases.
You cannot take both retirement benefits and survivor's benefits at the same time. When deciding which one to take, you need to compare the two benefits to see which is higher. In some cases, the decision is easy—one benefit is clearly much higher than the other. In other situations, the decision can be a little more complicated and you may want to take your survivor's benefit before switching to your retirement benefit.
To determine the best strategy, you will need to look at your retirement benefit at your full retirement age as well as at age 70 and compare that to your survivor's benefit. If your retirement benefit at age 70 will be larger than your survivor's benefit, it may make sense to claim your survivor's benefit at your full retirement age. You can then let your retirement benefit continue to grow and switch to the retirement benefit at age 70.
Example: A widow has the option of taking full retirement benefits of $2,000/month or survivor's benefits of $2,100/month. She can take the survivor's benefits and let her retirement benefits continue to grow. When she reaches age 70, her retirement benefit will be approximately $2,480/month, and she can switch to retirement benefits. Depending on the widow's life expectancy, this strategy may make sense even if the survivor's benefit is smaller than the retirement benefit to begin with.
Keep in mind that divorced spouses are also entitled to survivor's benefits if they were married for at least 10 years. If you remarry before age 60, you are not entitled to survivor's benefits, but remarriage after age 60 does not affect benefits. In the case of remarriage, you may need to factor in the new spouse's spousal benefit when figuring out the best way to maximize benefits.
The calculations are very complicated and there are literally thousands of possible strategies if one considers that for each month between ages 62 and 70, either spouse could file a claim for retirement benefits, resulting in a different cumulative benefit amount for each strategy. It is usually not possible to know what claiming strategy is most advantageous without the aid of benefit claiming software. To find out the strategy that would work best for you, consult with a financial professional and consider using a software program like Maximize my Social Security or Social Security Timing.
For more information about when to take Social Security benefits, click here.
For more information about Social Security benefits for spouses, click here.
Immediate annuities can be a useful tool to protect the spouse of a nursing home resident who applies for Medicaid. These types of annuities allow the nursing home resident to spend down assets and give the spouse a guaranteed income. But immediate annuities may not work in every state, so be sure to check with your attorney.
Medicaid is the primary source of payment for long-term care services in the United States. To qualify for Medicaid, a nursing home resident must become impoverished under Medicaid's complicated asset rules. In most states, this means the applicant can have only $2,000 in “countable” assets. Virtually everything is countable except for the home (with some limitations) and personal belongings. The spouse of a nursing home resident–called the “community spouse” — is limited to one half of the couple's joint assets up to $128,640 (in 2020) in “countable” assets. The least that a state may allow a community spouse to retain is $25,728 (in 2020). While a nursing home resident must pay his or her excess income to the nursing home, there is no limit on the amount of income a spouse can have.
An immediate annuity is a contract with an insurance company under which the annuitant pays the insurance company a sum of money in exchange for a stream of income. This income stream may be payable for life or for a specific number of years, or a combination of both — i.e., for life with a certain number of years of payment guaranteed. In the Medicaid planning context, most annuities are for a specific number of years.
The spouse of a nursing home resident may spend down his or her excess assets by using them to purchase an immediate annuity. But if Medicaid applicants or their spouses transfer assets within five years of applying for Medicaid, the applicants may be subject to a period of ineligibility, also called a transfer penalty. To avoid a transfer penalty, the annuity must meet the following criteria:
- The annuity must pay back the entire investment. When interest rates were higher, it was possible to purchase annuities for as short as two years, but now short annuities usually don't pay back the full purchase price.
- The payment period must be shorter than the owner's actuarial life expectancy. For instance, if the spouse's life expectancy is only four years, the purchase of an annuity with a five-year payback period would be deemed a transfer of assets.
- The annuity must be irrevocable and nontransferrable, meaning that the owner may not have the option of cashing it out and selling it to a third party.
- The annuity has to name the state as the beneficiary if the annuitant dies before all the payments have been made.
Here’s an example of how an immediate annuity might work: John and Jane live in a state that allows the community spouse to keep $128,640 of the couple’s assets. If John moves to a nursing home and John and Jane have $320,000 in countable assets (savings, investments, and retirement accounts), Jane can take $200,000 in excess assets and purchase an immediate annuity for her own benefit. After reducing their countable assets to $120,000, John will be eligible for Medicaid. If the annuity pays her $3,500 a month for five years, by the end of that time, Jane will have received back her investment plus $10,000 of income. If she accumulates these funds, at the end of five years she will be right back where she started before John needed nursing home care.
Given this planning opportunity, many spouses of nursing home residents use immediate annuities to preserve their own financial security. But it's not a slam-dunk for a number of reasons, including:
- Some states either do not allow spousal annuities or put additional restrictions on them.
- Other planning options may be preferable, such as spending down assets in a way that preserves them, transferring assets to exempt beneficiaries or into trust for their benefit, seeking an increased resource allowance, purchasing non-countable assets, using spousal refusal, or bringing the nursing home spouse home and qualifying for community Medicaid.
- The purchase of an annuity might require the liquidation of IRAs owned by the nursing home spouse, causing a large tax liability.
- The non-nursing home spouse may be ill herself, meaning that she may need nursing home care soon, in which case the annuity payments would simply go to her nursing home.
- The savings may be small due to a high income or the short life expectancy of the nursing home spouse, and the process of liquidating assets and applying for Medicaid might not be worth the considerable trouble.
In short, the use of this powerful planning strategy depends on each couple's particular circumstances and should be undertaken only after consultation with a qualified elder law attorney. To find an attorney near you, go here: https://www.elderlawanswers.com/elder-law-attorneys. In addition, those who do purchase immediate annuities need to shop around to make sure they are purchasing them from reliable companies paying the best return.
Finally, couples need to beware of deferred annuities. Some brokers will attempt to sell deferred annuities for Medicaid planning purposes, but these can cause problems. While a deferred annuity can be “annuitized” (meaning it can be turned into an immediate annuity), if the nursing home resident owns the annuity, the income stream will be payable to the nursing home instead of to the healthy spouse. Often, the annuity will charge a penalty for early withdrawal, so it is difficult to transfer it to the healthy spouse. In short, while immediate annuities can be great tools for Medicaid planning, deferred annuities should be avoided by anyone contemplating the need for care in the near future.
The $2 trillion economic relief package that Congress passed to help Americans deal with the devastating financial impact of the coronavirus pandemic contains some provisions that affect seniors. In addition to authorizing direct payments to most Americans, including seniors, the law also changes required retirement plan distributions for this year and includes Medicare-related provisions.
Signed into law on March 27, 2020, the Coronavirus Aid, Relief, and Economic Security (CARES) Act provides a one-time direct payment of $1,200 to individuals earning less than $75,000 per year ($150,000 for couples who file jointly), including Social Security beneficiaries. Payments are based on either 2018 or 2019 tax returns. The IRS has issued guidance, stating that anyone who did not file a 2018 tax return will need to file a simple tax return in order to receive the payment. After getting complaints that the requirement to file a tax return would be burdensome on seniors, the IRS announced that it would automatically send Social Security beneficiaries their stimulus check without their having to file a tax return. Social Security beneficiaries who receive direct deposit will get their checks directly in their bank accounts. The IRS will mail other beneficiaries a check, which may take longer than the direct deposit.
The CARES Act also affects retirement plans. Recognizing that the stock market crash has depleted many retirement plan accounts, the Act waives the requirement that individuals over a certain age take required minimum distributions from their non-Roth IRAs and 401(k)s in 2020. This includes any 2019 distributions that would otherwise have to be taken in 2020. Required minimum distributions for this year would be based on the value of the account at the end of 2019, when the account likely had more money in it. Waiving required minimum distributions will allow retirees to retain more of their savings.
In addition, the CARES Act allows individuals adversely affected by the pandemic to make hardship withdrawals of up to $100,000 from retirement plans this year without paying the 10 percent penalty that individuals under age 59 ½ are usually required to pay. Individuals who use this option will still have to pay income taxes on the withdrawals, although the tax burden can be spread out over three years. The dollar limit on loans from retirement plans is also increased until the end of the year.
Finally, the Act includes small but potentially important provisions for Medicare beneficiaries. While the Centers for Disease Control has been advising people to have a three-month's supply of needed medications on hand during the coronavirus crisis, many Medicare Part D plans limit the amount beneficiaries may order. The CARES Act requires that during the crisis Part D plans must lift these restrictions. Also, when a vaccine against COVID-19 is finally developed, it will be available to Medicare beneficiaries as part of Medicare, not Part D, and there will be no cost to beneficiaries.
For information from the IRS about coronavirus tax relief, click here.
For an IRS warning about scams related to the relief payments, click here.
The spread of the coronavirus to nursing home residents has caused the federal government to direct nursing homes to restrict visitor access. While the move helps the residents stay healthy, it can also lead to social isolation and depression. Families are having to find new ways to stay in touch.
Nursing homes have been hit hard by the coronavirus. The Life Care Center of Kirkland, Washington near Seattle was one of the first clusters of coronavirus in the United States and is one of the deadliest, with at least 35 deaths associated with the facility. In response, the Centers for Medicare and Medicaid Services (CMS) issued guidance to all nursing homes, restricting all visitors, except for compassionate care in end-of-life situations; restricting all volunteers and nonessential personnel; and cancelling all group activities and communal dining. While these actions are necessary to prevent the spread of the virus, they can leave families worried and upset and residents feeling isolated and confused.
Families are taking varying tacks to keep in contact with their loved ones, many of whom don’t fully understand why their family is no longer visiting. Nursing homes are also helping to facilitate contact. Some options for keeping in touch, include the following:
- Phone calls. Phone calls are still an option to be able to talk to your loved one.
- Window visits. Families who are able to visit their loved one’s window can use that to have in-person visits. You can hold up signs and blow kisses. Talking on a cell phone or typing messages on it and holding them up to the window may be a way to have a conversation.
- Facetime and Skype. Many nursing homes are facilitating video calls with families using platforms like Facetime or Skype. Some nursing homes have purchased additional iPads, while others have staff members going between rooms with a dedicated iPad to help residents make calls.
- Cards and letters. Sending cards and letters to your loved ones is another way to show them that you are thinking of them. Some nursing homes have also set up Facebook pages, where people can send messages to residents.
In this unprecedented time, families will need to get creative to stay in touch with their loved ones. For more articles about how families and nursing homes around the country are coping with the new restrictions, click here, here, and here.
As part of its response to the coronavirus pandemic, the federal government is broadly expanding coverage of Medicare telehealth services to beneficiaries and relaxing HIPAA enforcement. This will give doctors the ability to provide more services to patients remotely.
Medicare covers telehealth services that include office visits, psychotherapy, and consultations provided by an eligible provider who isn't at your location using an interactive two-way telecommunications system (like real-time audio and video). Normally, these services are available only in rural areas, under certain conditions, and only if you’re located at one of these places:
- A doctor’s office
- A hospital
- A critical access hospital (CAH)
- A rural health clinic
- A federally qualified health center
- A hospital-based dialysis facility
- A skilled nursing facility
- A community mental health center
Under the new expansion, Medicare will now pay for office, hospital, and other visits provided via telehealth in the patient’s home. Doctors, nurse practitioners, clinical psychologists, and licensed clinical social workers will all be able to offer a variety of telehealth services to their patients, including evaluation and management visits, mental health counseling, and preventive health screenings. In addition, relaxed HIPAA enforcement (the law governing patient privacy) means doctors may use technologies like Skype and Facetime to talk to patients as well as using the phone.
In addition to Medicare’s expansion, states are also allowing doctors to provide telehealth services to Medicaid beneficiaries. For example, New York will now cover telephone-based evaluations when an in-person visit is not medically recommended. Many other states are following suit.
This expansion of telehealth services will allow older adults who are particularly vulnerable to COVID-19 to stay home and still get medical advice. If you need to see a medical provider during this health emergency, check to see whether they are employing telehealth services. To use telehealth services, you need to verbally consent and your doctor must document that consent in your medical record. For information from AARP on what you might expect during a virtual doctor’s visit, click here.
Some lucky retirees split their time between two different states. Legally, you do not need separate estate planning documents for each state, but it may make sense from a practical perspective.
The Constitution of the United States requires that states give “full faith and credit” to the laws of other states. This means that your will, trust, durable power of attorney, and health care proxy executed in Massachusetts (just to pick one state) should be honored in New Hampshire, Florida, and every other state. That's the law.
The practical realities, however, are not the same as the legal requirements. While you should not need a separate will or trust for a second state, your power of attorney and health care proxy may be a different story. Financial and health care institutions are used to the documents used in their states and may refuse to honor out-of-state documents. In the case of health care proxies, other states may use different terms for the document, such as “durable power of attorney for health care” or “advance directive.” (And the people reviewing your power of attorney or health care proxy may not be well versed in constitutional law.)
In the absence of a durable power of attorney or health care proxy, family members often must resort to going to court to be appointed guardian or conservator. This causes delay and expensive and unnecessary legal fees. So, even though it should not be necessary, if you do spend a good part of the year out-of-state, executing a local health care directive and durable power of attorney may be a good idea. Make sure that you appoint the same people you appointed on your other estate planning documents, so that there's no confusion about who should act for you when the time comes.
A new payment method for Medicare providers is making it harder for some home health care patients to receive physical, occupational, or speech therapy. Under the new system, providers are refusing to cover some therapy services.
On January 1, 2020, the federal Centers for Medicare and Medicaid Services (CMS) instituted a new way of paying home health care providers, called the Patient-Driven Groupings Model (PDGM). Previously, provider payments were based on the amount of therapy delivered. The PDGM requires payments to be based on a complicated formula that takes into account a patient’s medical condition, the extent to which the patient is impaired, and whether the patient was hospitalized. In addition, CMS now pays providers in 30-day periods of care, rather than the earlier 60-day periods.
In response to this new system, providers are slashing therapy services, according to Kaiser Health News, which found that therapists are being laid off, being asked to decrease services, or are incorrectly telling patients that services aren’t covered. There are also fewer incentives for home health providers to treat patients who need long-term therapy.
While providers have reacted to the new payment system by cutting services, CMS sent a letter to providers reiterating that actual coverage for services has not changed. As long as a patient meets the conditions for receiving home health care under Medicare regulations, the patient should get home health care services, including therapy. Home health care agencies shouldn’t ignore physician orders, CMS maintained.
If you encounter coverage problems, contact the Center for Medicare Advocacy or an elder law attorney. To find an attorney near you, go here: https://www.elderlawanswers.com/elder-law-attorneys.
Trusts can be useful tools to protect your assets, save on estate taxes, or set aside money for a family member. But before you commit to adding a trust to your estate plan, make sure you understand the differences between revocable (also called “living”) and irrevocable trusts because each offers advantages and disadvantages, depending on their purpose.
While the two main types of trusts differ in how they are structured and taxed, both types of trusts are tools for setting aside assets and distributing them according to specific wishes and instructions. They can protect one’s property, safeguard a family’s financial future, and provide tax-saving strategies.
As the name suggests, an irrevocable trust, once established, can’t be canceled or revoked. The person creating the trust, sometimes called the “grantor,” transfers assets into the trust and permanently gives up all claim to them. A trustee is appointed to carry out the instructions spelled out in the trust. No changes to the terms of the trust can be made without the consent of the trust’s beneficiaries.
In contrast, a living trust offers more flexibility. The grantor of a living trust still owns and controls the assets and can make changes at any time. A living trust also has a trustee, someone who would take over management of the trust if the owner is no longer capable of doing so.
Both types of trusts offer tax advantages, although these differ in key ways. An irrevocable trust is considered a separate entity and must have its own tax returns filed annually under its tax ID number. Irrevocable trusts can incur additional costs if a CPA is needed for tax preparation. Because it is a trust and not an individual, the irrevocable trust can’t qualify for the various deductions and exemptions that individuals can claim on their returns. Also, higher rates apply at lower income levels. For example, an irrevocable trust is subject to the highest federal tax rate of 37 percent if its income exceeds $12,500, a much lower ceiling than for individuals.
Assets within a living trust are still considered the property of the trust owner. Any income earned from this trust is filed along with the owner’s other income. Also, the assets of the trust belong to the owner’s estate and are taxed accordingly on the owner’s death. For this reason, wealthy families may choose to transfer a portion of their assets into an irrevocable trust to keep the value of their estate below federal and state exemptions.
Protecting Assets in the Future
One key advantage of irrevocable trusts is that their assets are protected from lawsuits and creditors. A living trust offers no such protection, because the trust assets are still part of the owner’s property.
A living trust is an option for someone who doesn’t need all the layers of protection but still wants to set up some provisions for the future. A living trust works well to set aside assets in the event that the grantor becomes unable to manage his or her finances in the future, due to illness or old age. With a living trust, the grantor controls the property while he or she is competent, but a trustee can take over this function if the grantor loses this capacity.
If there are other considerations, such as estate tax planning, protection from creditors, or providing for a special needs family member, an irrevocable trust might be the better way to go. Your planner will have the best answers for your particular circumstances.
Keep in mind that this is general advice only and that specific situations may be treated differently. Contact your attorney for advice on how your specific situation will be handled using different types of trusts.
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