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Medicaid and the LGBT Community: Paying for Long Term Care – Update 2016
August 2016 | Arlene Zarembka, Attorney at Law
The Medicaid rules for individuals and unmarried same sex couples who are treated by a state as "unrelated" are quite different from those that apply to married couples.
The eligibility rules for Medicaid are complicated, and can contain traps for the unwary. This article provides an overview of the rules that apply to those in the LGBT community who might need Medicaid, particularly those who might need long term care in a nursing home. The following article is directed at single persons and unmarried partners.
The Medicaid rules for individuals and unmarried same sex couples who are treated by a state as "unrelated" are quite different from those that apply to married couples. Because Medicaid rules are extremely complex, and vary from state to state, be sure to consult with an attorney knowledgeable about the Medicaid rules in the state where you live before transferring or gifting any of your assets to your spouse, partner, or to anyone else (including children, grandchildren, charities, or other organizations).
Difference Between Medicare and Medicaid
Medicare and private health insurance do not pay for long term custodial care, whether in a long term care facility or at home. Medicare pays only for limited rehabilitation services, whether in a nursing facility or at home. Those needing long term custodial care in a nursing home must pay nursing home costs from their own income and assets (or with the help of Long Term Care Insurance policies).
Medicaid does pay for long term custodial care for eligible applicants, but only if the applicant is in a "Medicaid bed." Not all nursing homes have Medicaid beds, or, even if they do, their Medicaid beds may be filled. If an individual's monthly income exceeds the monthly nursing home cost, s/he will not be eligible for nursing home Medicaid. However, few people have sufficient monthly income to pay for nursing home costs, and must use their assets to cover the monthly shortfall.
Applying for Medicaid: Your Assets
Many people living in a long term care facility eventually run out of sufficient assets to continue paying the monthly costs. At that point, a person can apply for Medicaid, which is available to help pay the costs of long term residential nursing care for those who are disabled, blind, or (in most states) over 65 years of age, and who have very few assets and limited income. Some states, however, have a cap on the amount of monthly income an applicant can have, even if that income is not sufficient to pay for long term care facility charges in the community where the applicant lives.
After qualifying for Medicaid benefits, the applicant must pay virtually all of her or his income to the nursing home; Medicaid pays the rest.
Each state limits the amount of assets that a person who is medically eligible for Medicaid can own. An applicant's "countable" assets cannot exceed the maximum set by the state in which s/he lives, which ranges from a low of $999 to a "high" of $13,800 for eligibility for Medicaid nursing home benefits.
There are, however, some assets that are not counted in determining an applicant's assets. The most common exemptions include the following (but be sure to check your own state’s rules, as the rules may be different in your state):
Home: In some states the exemption applies to the applicant's home if the applicant intends to return to the home (even if the intent is unrealistic). In other states, the exemption applies only if the applicant reasonably can be expected to return to the home within six months. The home also is exempt if the applicant's spouse, minor or disabled child, or child who was providing care for the applicant, continues to live in the home.
Some other exemptions might apply, depending on the state and other factors.
Transferring or Gifting Assets
In general, a person cannot give away money or other assets in order to qualify for Medicaid long term care benefits. Transferring assets or giving money to another person (other than your spouse) can result in a substantial delay in eligibility for Medicaid benefits. Do not transfer or give away any of your money or assets to anyone else (including a partner to whom you are not married) until you have consulted with an attorney to determine the possible consequences of such a transfer or gift.
If, within the five years preceding an application for Medicaid for long term care, the applicant gives away or transfers any money or property to another, or sells any property for less than its fair market value, the applicant usually will be ineligible for Medicaid nursing home benefits for a period of time, even if s/he no longer has sufficient income and assets to pay for nursing care. The period of ineligibility (called the "penalty period") will start when the applicant is medically eligible for and applies for Medicaid. The penalty period is calculated based on the value of money or property transferred or gifted (or the value of property sold for less than its fair market value) during the five years before the Medicaid application. A common misconception is that a person can "gift" $13,000 per year to another person without any adverse Medicaid consequences–this is not true. The tax ramifications, or lack thereof, of gifting money to someone are completely different than the Medicaid restrictions.
All assets belonging to either spouse in a married couple are considered available to the Medicaid applicant; either spouse can transfer assets to the other spouse without penalty. To avoid impoverishing the spouse who remains living at home in the community, there are procedures that allow the assets to be divided in a way that maximizes the assets that the non institutionalized spouse can keep (but often still not a great deal of assets).
While many same sex unmarried partners hold all or most of their assets jointly, as a sign of their commitment to each other, owning assets jointly could have unintended consequences if one of the partners suffers a serious injury or a long term debilitating illness (such as a stroke, or Alzheimer's disease or another progressive dementia). The state Medicaid program might consider all of the assets held in joint financial accounts to be available to the partner with disabilities, thereby requiring both partners to become impoverished before the partner with disabilities can become eligible for Medicaid.
Moreover, if a Medicaid applicant owned a joint account with another person to whom the applicant was not married, and if the joint owner withdrew funds from the joint account during the preceding five years and did not use the funds for the applicant's needs, a state might consider the withdrawals as transfers of assets, which could result in the applicant facing a period of ineligibility for Medicaid nursing home benefits. If an applicant removed her/his name from a joint account within the preceding five years, this also might be considered a gift or transfer of assets to the joint owner (if the applicant was not married to the joint owner).
After a Medicaid beneficiary dies, the state can recover the Medicaid benefits that the state paid on behalf of the recipient from the beneficiary's estate. This "recovery of assets" can include a claim against the beneficiary's home, up to the total Medicaid benefits paid. If the Medicaid beneficiary owned a home jointly with a partner to whom the Medicaid beneficiary was not married, the state might demand that the surviving partner either reimburse Medicaid for the benefits paid to the deceased partner, or else force a sale of the home to recoup the Medicaid benefits paid. Each state has its own policy regarding recovery of Medicaid benefits from a home that was jointly owned with a non spouse. (While some states might treat a surviving same sex partner the same as a surviving spouse of a marriage, states are not required to do so). Therefore, it’s essential to consult with an attorney in your state as to the Medicaid rules that are applicable to you, given your personal situation.
The Inheritance Trap
If a Medicaid recipient receives an inheritance, this often will cause the recipient to lose her/his Medicaid eligibility until s/he spends down the inheritance to below the assets that s/he is allowed to have in the state. In most, if not all states, a beneficiary cannot turn down or give away the inheritance in order to qualify or maintain eligibility for Medicaid nursing home benefits.
Supplemental Needs Trusts
It is not advisable to leave all or part of your assets outright to a partner or spouse who has serious disabilities or a progressive disease, or who is elderly and may need Medicaid –the inheritance may delay or jeopardize her/his eligibility for nursing home Medicaid. Instead, a properly drafted Supplemental Needs Trust (also called a Special Needs Trust) can provide that your assets will be used after your death to supplement your partner's public assistance benefits (such as Medicaid or Supplemental Security Income), rather than replacing the benefits, while, at the same time, protecting your partner's eligibility for public assistance benefits. The assets and income of the trust can be used to pay for activities and needs that Medicaid or other programs do not cover, improving the partner's quality of life. Establishing such a trust means that the inheritance is not counted by public assistance programs when determining your partner's eligibility. Note, however, that Supplemental Needs Trust are complex, and there are different rules depending in whether you are married or not married. It is essential to consult with an attorney in your state who is knowledgeable about Medicaid planning for a spouse or partner who has serious disabilities or a progressive disease, or who is elderly and may need Medicaid.
Splitting Joint Accounts
If an unmarried couple has joint accounts, and it becomes apparent that one of the partners may need long term custodial care in the future, the partners should consider whether it is advisable to "split" their joint accounts, so that each partner owns her/his own assets separately from the other. If each partner contributed a certain percentage to an account, any split of that account should be in proportion to the percentage that each contributed to the account.
Whenever splitting accounts, partners should ask an attorney to prepare a document (to be signed by each partner and notarized) memorializing the underlying facts concerning the accounts–either that the non contributing partner was on the accounts solely as a convenience, or the portion of each account that was distributed to each partner, based on each partner's contribution to the account. Such a document would provide evidence that dividing the joint accounts into separate accounts did not constitute a gift by either partner to the other. (The strategy of splitting joint accounts is most likely to be successful, from a Medicaid eligibility perspective, if it is done as early as possible, to maximize the likelihood that the splitting of accounts occurred more than five years before either partner applies for Medicaid.)
Whether or not it will be necessary or advisable for partners to split joint accounts depends on federal and state policies regarding transfers of assets and estate recovery.
Expenditures of Income/Assets for Another Person
Many unmarried LGBT couples use their income or assets for both partners' benefit. If one of the partners starts to decline, and anticipates needing nursing home care in the future, none of the declining partner's income or assets should be used for the partner's benefit–unless an attorney knowledgeable about Medicaid assures you that this will not adversely affect the declining partner's eligibility for Medicaid. Otherwise, a state might impose a penalty period if the declining partner applies for nursing home Medicaid, on the grounds that expenditures of the applicant's income or assets for the partner's benefit during the five years preceding the application constituted a series of "gifts" to the partner.
There are various other strategies involving the assets of a person with disabilities that can be used to help the person qualify for Medicaid. However, seek the advice of a Medicaid attorney in your state to see what other strategies might work in your state.
Remember, never make any decisions regarding Medicaid planning, including transferring any money or other assets, without first consulting with a knowledgeable attorney in your state.
Arlene Zarembka is currently located in Missouri and has been practicing law for 42 years. She primarily practices Estate Planning and Elder Law, providing comprehensive legal counsel and practical advice regarding estate planning, Wills, Trusts, Supplemental Needs/Special Needs Trusts, Powers of Attorney, Living Wills (end of life wishes), Beneficiary Deeds, Beneficiary Designations, as well as other documents. She is on the Legal Committee of the ACLU of Missouri, and is a cooperating attorney for the National Center for Lesbian Rights. Her website is: http://zarembkalaw.justia.net/
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