How Gifts Can Affect Medicaid Eligibility

We’ve all heard that it’s better to give than to receive, but if you think you might someday want to apply for Medicaid long-term care benefits, you need to be careful because giving away money or property can interfere with your eligibility.

Under federal Medicaid law, if you transfer certain assets within five years before applying for Medicaid, you will be ineligible for a period of time (called a transfer penalty), depending on how much money you transferred. Even small transfers can affect eligibility. While federal law allows individuals to gift up to $15,000 a year (in 2019) without having to pay a gift tax, Medicaid law still treats that gift as a transfer.

Any transfer that you make, however innocent, will come under scrutiny. For example, Medicaid does not have an exception for gifts to charities. If you give money to a charity, it could affect your Medicaid eligibility down the road. Similarly, gifts for holidays, weddings, birthdays, and graduations can all cause a transfer penalty. If you buy something for a friend or relative, this could also result in a transfer penalty.

Spending a lot of cash all at once or over time could prompt the state to request documentation showing how the money was spent. If you don’t have documentation showing that you received fair market value in return for a transferred asset, you could be subject to a transfer penalty.

While most transfers are penalized, 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
  • your child who is blind or permanently disabled
  • a trust for the sole benefit of anyone under age 65 who is 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

Before giving away assets or property, check with your attorney to ensure that it won’t affect your Medicaid eligibility. To learn more, contact Kristen Prull Moonan or Amy Stratton.

Medicare Launches App to Help Beneficiaries Find Out What’s Covered

At the doctor’s office and want to know if a procedure is covered by Medicare? There is an app for that. Medicare has launched a free app that gives beneficiaries a quick way to see whether the program covers a specific medical item or service.

The “What’s Covered” app allows you to search or browse to learn what’s covered and not covered under Medicare Parts A and B, how and when to get covered benefits, basic cost information and other eligibility details. You can also see a list of covered preventive services. The app does not give results for extra benefits that Medicare Advantage plans may cover but that Original Medicare does not, such as certain vision, hearing or dental benefits.

Examples of the types of questions the app can answer include:

  • When are mammograms covered?
  • Is home health care covered?
  • Will Medicare pay for diabetes supplies?
  • Can I get a regular cervical cancer screening?
  • Will my Medicare benefits cover a service to help me stop smoking?

Although the app provides beneficiaries with basic information, it doesn’t provide personalized information. It doesn’t ask details about each user’s specific insurance information, so it doesn’t take into account the user’s supplemental insurance, co-insurance, and deductibles. Essentially, the app provides another way for Medicare beneficiaries to get the same information that is available online and in the Medicare handbook.

The app is part of an initiative by the Centers for Medicare and Medicaid Services (CMS) focused on modernizing Medicare and empowering beneficiaries. Other initiatives include:

  • Enhanced interactive online decision support to help beneficiaries better understand and evaluate the coverage options and costs of original Medicare compared to Medicare Advantage plans.
  • New price transparency tools that let consumers compare the national average costs of certain procedures between settings, so people can see what they’ll pay for procedures done in a hospital outpatient department versus an ambulatory surgical center.
  • A new webchat option in the Medicare Plan Finder.
  • New easy-to-use surveys across Medicare.gov so consumers can tell CMS what they want.

To get the new “What’s Covered” app, go here: https://www.medicare.gov/blog/whats-covered-mobile-app. Or learn more by contacting Kristen Prull Moonan or Amy Stratton.

A Final Retirement Account Distribution Must Still Be Made After Death

Federal law requires that beginning on April 1 of the year after you reach age 70 1/2, you must begin withdrawing a minimum amount from your non-Roth individual retirement account (IRA) or 401(k) accounts. These withdrawals are called required minimum distributions (RMDs).

But what if you die after age 70 1/2 and before all the account funds have been distributed? In the eyes of the law, death is no excuse not to take RMDs from an IRA or 401(k). Your heirs must take the final RMD before they can take control of the account.

Congress created the rules governing the minimum distribution of retirement plan funds to encourage saving for retirement and to allow retirement assets to build up tax-free during the plan owner’s working years. But lawmakers built in provisions so the money wouldn’t simply keep accumulating tax-free forever. The funds you withdraw are treated as taxable income in the year you take the distribution. If you don’t start taking the RMDs from your retirement accounts and pay taxes on the withdrawals, you will face a 50 percent penalty on what should have been withdrawn but wasn’t.

The rules for inheriting an IRA as a spouse are different than the rules for a non-spouse beneficiary, but regardless of who is inheriting the IRA, the heir must take the RMD for the year the account owner died. The full RMD must be taken by December 31 in the year the account owner died, even if he or she died at the beginning of the year. To take the RMD, beneficiaries must contact the custodian of the account and submit a death certificate. If the account owner died before he or she was required to begin distributions, then the beneficiaries do not need to take an RMD.

The money from the RMD will go directly to the beneficiary listed on the account, not the estate. That means it will be taxable income for the beneficiary. If there is more than one beneficiary, it will be split evenly.

To find out the best way to deal with an inherited IRA, contact  Kristen Prull Moonan or Amy Stratton.

How to Plan Your Funeral

Thinking about your funeral may not be fun, but planning ahead can be exceedingly helpful for your family. It both lets them know your wishes and assists them during a stressful time. The following are steps you can take to plan ahead:

  • Name who is in charge. The first step is to designate someone to make funeral arrangements for you. State law dictates how that appointment is made. In some states, an informal note is enough. Other states require you to designate someone in a formal document, such as a health care power of attorney. If you do not designate someone, your spouse or children are usually given the task. 
  • Put your preferences in writing. Write out detailed funeral preferences as well as the requested disposition of your remains. Would you rather be buried or cremated? Do you want a funeral or a memorial service? Where should the funeral or memorial be held? The document can also include information about who should be invited, what you want to wear, who should speak, what music should be played, and who should be pallbearers, among other information. The writing can be a separate document or part of a health care directive. It should not be included in your will because the will may not be opened until long after the funeral. 
  • Shop around. It is possible to make arrangements with a funeral home ahead of time, so your family does not have to scramble to set things up while they are grieving. Prices among funeral homes can vary greatly, so it is a good idea to check with a few different ones before settling on the one you want. The Federal Trade Commission's Funeral Rule requires all funeral homes to supply customers with a general price list that details prices for all possible goods or services. The rule also stipulates what kinds of misrepresentations are prohibited and explains what items consumers cannot be required to purchase, among other things. 
  • Inform your family members. Make sure you tell your family members about your wishes and let them know where you have written them down. 
  • Figure out how to pay for it. Funerals are expensive, so you need to think about how to pay for the one you want. You can pre-pay, but this is risky because the funds can be mismanaged or the funeral home could go out of business. Instead of paying ahead, you can set up a payable-on-death account with your bank. Make the person who will be handling your funeral arrangements the beneficiary (and make sure they know your plans). You will maintain control of your money while you are alive, but when you die it is available immediately, without having to go through probate. Another option is to purchase a life insurance policy that is specifically for funeral arrangements. 

Taking the time to plan ahead will be a big help to your family and give you peace of mind. 

For more information on planning your funeral from Kiplingerclick here

Kristen Prull Moonan & Amy Stratton Recognized for Professional Excellence

Happy day!

Shout out to Amy Stratton and Kristen Prull Moonan who were both recently recognized by Rhode Island Monthly for Professional Excellence in the category of elder law.

“We are lucky to spend our days helping our clients with their estate planning and long-term-care planning needs.”

The Professional Excellence Series from Rhode Island Monthly showcases the top professionals in a variety of fields, including law. These professionals are chosen on several criteria ranging from peer reviews, feedback from professionals in related fields, professional standing, and other data collected by a third-party survey and data company.

Welcome! New Faces Expand The MSW Team

We welcome Michelle Canning and Sherry Hassel to our team, where they will lend their time and talents as our receptionist and paralegal, respectively.

Expect to talk to Michelle the next time you call our office and to interact with Sherry on your legal documents.

Our workplace culture is based on respect and collaboration, both within our office and in our interactions with our clients. As always, we invite your feedback in all of our communications.

What Is the Difference Between a Living Will and a Do-Not-Resuscitate Order?

It is a very good idea to create advance directives in order to plan for the possibility that you may one day be unable to make your own medical decisions. In doing so, there can be confusion about the difference between a living will and a “do-not-resuscitate” order (DNR). While both these documents are advance medical directives, they serve different purposes.

A living will is a document that you can use to give instructions regarding treatment if you become terminally ill or are in a persistent vegetative state and unable to communicate your instructions. The living will states under what conditions life-sustaining treatment should be terminated. If you would like to avoid life-sustaining treatment when it would be hopeless, you need a living will. A living will takes effect only when you are incapacitated and is not set in stone — you can always revoke it at a later date if you wish to do so.

When drawing up a living will, you need to consider the various care options and what you would like done. You need to think about whether you want care to extend your life no matter what or only in certain circumstances. A living will can dictate when you want a ventilator, dialysis, tube feeding, blood transfusions, and other life- saving or life-prolonging options.

A DNR is a different document. A DNR says that if your heart stops or you stop breathing, medical professionals should not attempt to revive you. This is very different from a living will, which only goes into effect if you are unable to communicate your wishes for care. Everyone can benefit from a living will, while DNRs are only for very elderly and/or frail patients for whom it wouldn’t make sense to administer CPR.

In addition to a living will, you will also need a health care proxy or broader medical directive. To learn more, contact Kristen Prull Moonan or Amy Stratton .

Discovery of Aretha Franklin’s Handwritten Wills Throws Her Estate Into Turmoil

Legendary singer Aretha Franklin was thought to have died without a will, but the recent discovery of handwritten documents in her home is calling that into question. A representative of her estate has asked a Michigan probate court to determine if any of the documents could be considered a valid will.

When Franklin died August 16, 2018, at age 76, her four sons filed paperwork in Oakland County, Michigan, indicating that she died intestate — that is, without a will. The sons nominated Franklin’s niece to serve as the personal representative of the estate. When someone dies without a will, the estate is divided according to state law. Under Michigan law, an unmarried decedent’s estate is distributed to his or her children. (Franklin had been married twice but long since divorced.)  At the time of her death, the “Queen of Soul” was estimated to be worth $80 million.)

According to recent court filings, however, two handwritten documents dated 2010 and a third one dated 2014 were discovered in Franklin’s home (with the 2014 document reportedly found under the couch cushions).  The estate’s personal representative — called an executor in some states — is asking the court to determine if any of the documents are valid wills under Michigan law. The documents distribute her assets to family, but are hard to read and contain tangents and asides. Two of Franklin’s sons are reportedly contesting the documents.

Michigan law allows wills that are “holographic” — handwritten and not witnessed. To be valid under Michigan law, a holographic will must be dated, signed by the testator, be in the testator’s handwriting, and clearly be intended to be a will. It is not clear whether any of these documents will meet this standard. There is also confusion about the personal representative. While Franklin’s niece is currently serving in the role, one of the documents names one of Franklin’s sons as representative.

All of this confusion and extra expense could have been avoided if Franklin had consulted an attorney to create an estate plan. With a good estate plan, she also may have been able to keep the details of her estate private instead of having the battle play out in public.

Proper estate planning with a qualified professional is important even if you don’t have Aretha Franklin’s assets. It allows you, while you are still living, to ensure that your property will go to the people you want, in the way you want, and when you want. It permits you to save as much as possible on taxes, court costs, and attorneys’ fees; and it gives you the comfort that your loved ones can mourn your loss without also being burdened with unnecessary red tape and financial confusion — and not have surprises suddenly turn up in the sofa cushions.

Contact Kristen Prull Moonan or Amy Stratton to begin working on your estate plan now.

For more about the new Franklin estate discovery, click here and here.

To read the three recently discovered documents, courtesy of the Detroit Free Press, click here.

Protecting Your House from Medicaid Estate Recovery

After a Medicaid recipient dies, the state must attempt to recoup from his or her estate whatever benefits it paid for the recipient’s care. This is called “estate recovery.” For most Medicaid recipients, their house is the only asset available, but there are steps you can take to protect your home.

Life estates
For many people, setting up a “life estate” is the simplest and most appropriate alternative for protecting the home from estate recovery. A life estate is a form of joint ownership of property between two or more people. They each have an ownership interest in the property, but for different periods of time. The person holding the life estate possesses the property currently and for the rest of his or her life. The other owner has a current ownership interest but cannot take possession until the end of the life estate, which occurs at the death of the life estate holder.

Example: Jane gives a remainder interest in her house to her children, Robert and Mary, while retaining a life interest for herself. She carries this out through a simple deed. Thereafter, Jane, the life estate holder, has the right to live in the property or rent it out, collecting the rents for herself. On the other hand, she is responsible for the costs of maintenance and taxes on the property. In addition, the property cannot be sold to a third party without the cooperation of Robert and Mary, the remainder interest holders.

When Jane dies, the house will not go through probate, since at her death the ownership will pass automatically to the holders of the remainder interest, Robert and Mary. Although the property will not be included in Jane’s probate estate, it will be included in her taxable estate. The downside of this is that depending on the size of the estate and the state’s estate tax threshold, the property may be subject to estate taxation. The upside is that this can mean a significant reduction in the tax on capital gains when Robert and Mary sell the property because they will receive a “step up” in the property’s basis.

As with a transfer to a trust, if you transfer the deed to your home to your children and retain a life estate, this can trigger a Medicaid ineligibility period of up to five years. Purchasing a life estate in another home can also cause a transfer penalty, but the transfer penalty can be avoided if the individual purchasing the life estate resides in the home for at least one year after the purchase and pays a fair amount for the life estate.

Life estates are created simply by executing a deed conveying the remainder interest to another while retaining a life interest. In many states, once the house passes to the remainder beneficiaries, the state cannot recover against it for any Medicaid expenses that the ife estate holder may have incurred.

Trusts
Another method of protecting the home from estate recovery is to transfer it to an irrevocable trust. Trusts provide more flexibility than life estates but are somewhat more complicated. Once the house is in the irrevocable trust, it cannot be taken out again. Although it can be sold, the proceeds must remain in the trust. This can protect more of the value of the house if it is sold. Further, if properly drafted, the later sale of the home while in this trust might allow the settlor, if he or she had met the residency requirements, to exclude up to $250,000 in taxable gain, an exclusion that would not be available if the owner had transferred the home outside of trust to a non-resident child or other third party before sale.

Contact  Kristen Prull Moonan or Amy Stratton  to find out what method will work best for you.

Medicare’s Different Treatment of the Two Main Post-Hospital Care Options

Hospital patients who need additional care after being discharged from the hospital are usually sent to either an inpatient rehabilitation facility (IRF) or a skilled nursing facility (SNF). Although these facilities may look similar from the outside, Medicare offers very different coverage for each. While you may not have complete say in where you go after a hospital stay, understanding the difference between the two facilities can help you advocate for what you need and know what to expect with regard to Medicare coverage.

An IRF can be either part of a hospital or a stand-alone facility that offers intensive physical and occupational therapy under the supervision of a doctor and nurses. IRFs offer a minimum of three hours a day of rehabilitation therapy. An SNF, on the other hand, provides full-time nursing care. Patients also receive physical and occupational therapy, but the care is generally less intensive and specialized than in an IRF.

IRFs and Medicare

Medicare Part A covers a stay in an IRF in the same way it covers hospital stays. Medicare pays for 90 days of hospital care per “spell of illness,” plus an additional lifetime reserve of 60 days. A single “spell of illness” begins when the patient is admitted to a hospital or other covered facility, and ends when the patient has gone 60 days without being readmitted to a hospital or other facility. There is no limit on the number of spells of illness. However, the patient must satisfy a deductible before Medicare begins paying for treatment. This deductible, which changes annually, is $1,364 in 2019.

After the deductible is satisfied, Medicare will pay for virtually all hospital charges during the first 60 days of a recipient’s hospital stay. If the hospital stay extends beyond 60 days, the Medicare beneficiary begins shouldering more of the cost of his or her care. From day 61 through day 90, the patient pays a coinsurance of $341 a day in 2019. Beyond the 90th day, the patient begins to tap into his or her 60-day lifetime reserve. During hospital stays covered by these reserve days, beneficiaries must pay a coinsurance of $682 per day in 2019.

To qualify for care in an IRF, you must need 24-hour access to a doctor and a nurse with experience in rehabilitation. You must also be able to handle three hours of therapy a day (although there can be exceptions).

SNFs and Medicare

Medicare’s coverage of skilled nursing care is more limited. Medicare Part A covers up to 100 days of “skilled nursing” care per spell of illness. Beginning on day 21 of the nursing home stay, there is a copayment equal to one-eighth of the initial hospital deductible ($170.50 a day in 2019). However, the conditions for obtaining Medicare coverage of a nursing home stay are quite stringent. Here are the main requirements:

  • The Medicare recipient must enter the nursing home no more than 30 days after a hospital stay (meaning admission as an inpatient; “observation status” does not count) that itself lasted for at least three days (not counting the day of discharge).
  • The care provided in the nursing home must be for the same condition that caused the hospitalization (or a condition medically related to it).
  • The patient must receive a “skilled” level of care in the nursing facility that cannot be provided at home or on an outpatient basis. In order to be considered “skilled,” nursing care must be ordered by a physician and delivered by, or under the supervision of, a professional such as a physical therapist, registered nurse or licensed practical nurse. Moreover, such care must be delivered on a daily basis. (Few nursing home residents receive this level of care.)

A new spell of illness can begin if the patient has not received skilled care, either in an SNF or in a hospital, for a period of 60 consecutive days. The patient can remain in the SNF and still qualify as long as he or she does not receive a skilled level of care during that 60 days.

Keep in mind that some or all of Medicare’s deductibles and co-payments for both IRF and SNF care may be covered by Medicare supplemental insurance, also called Medigap coverage.  Contact Kristen Prull Moonan or Amy Stratton to learn more.