Archive for the ‘Medicaid’ Category

Understanding life estates may be essential if protecting the home (or other real property) is an important goal. Getting the concept down, however, can be a bit confusing. Confusion be gone! Read on!

Blame the English for our confusing real property law. I am convinced that the concepts involved in this article were invented in 1095 at Ye Whyte Horse on Thames Taverne four hours after closing time and some of the barristers had gotten a bit into their cups.

Lately, many have been asking about so-called “Lady Bird Deeds.” I’ll explain below . . . but you are going to have to read the whole article in order to understand.

First, take a look at other types of ownership . . . it might make understanding life estates easier.

Fee Simple

Most people think of real property ownership as fee simple. Someone with fee simple title completely owns the property. She can sell it, give it away, rent it, use it as security on a loan and do pretty much anything she wants with it (that isn’t otherwise illegal, of course). She is also responsible for paying the taxes on the property and any debts encumbering the property. The property is subject to the claims of her creditors. When the owner dies, the property passes through her estate (as directed by either a will or the state laws of intestacy).

Tenancy in Common

If two or more people own property the property is likely tenancy in common. Think of it something like a partnership among the owners. Each can use the property (unless they have a contract to the contrary). Each can sell his share, give it away, and use it as security for a loan. If one owner dies, his share passes as directed by his will or the laws of intestacy. Creditors can claim against his share. InGeorgia, a married couple is presumed to own property as tenants in common, although they can make other arrangements in a deed.

Joint Tenancy With Rights of Survivorship

This type of ownership might seem similar to tenancy in common, but it isn’t. Initially it looks like a tenancy in common, but if one owner

dies, the other owners take his share (divided among themselves). Sort of a “Last Man Standing” game because the property may end up completely owned (in fee simple) by the last surviving owner. Incidentally, in North Carolina, a married couple is presumed to own property as “tenants by the entireties” . . . which for purposes of this discussion acts the same as a joint tenancy with rights of survivorship (although they can opt out).

Now For Life Estates . . .

If one person owns the right to occupy and use property for her remaining life (she is called the “life tenant”) and the title specifies that the property passes automatically at the instant of the life tenant’s death (these folks are called the remainder interests . . . in the less gentle times of about 15 years ago they were called the remaindermen) the result is a life estate. Many folks call it “life time rights.”

While the life tenant has a right to live on the property or perhaps to collect rent on the property, she also has the responsibility of keeping it up and paying taxes on it.

Although theoretically a life tenant can encumber her life estate or sell her life estate, all she can do is dispose of or restrict whatever it is she owns . . . a life estate. No banker in his right mind will lend against a life estate because when the borrow dies . . . poof! . . . so does the banker’s security. The property passes free to the remainder interests. Same thing happens with respect to the life tenant’s creditors. Poof! Gone. Now don’t get excited . . . if the life tenant owned the property in fee simple and encumbered it before setting up the life estate the creditor isn’t going anywhere until someone pays up!

How To Set Up A Life Estate

Two ways. A fee simple property owner can set up a life estate for himself by conveying a remainder interest in the property to the intended remainder interests. The deed may say something like “I, Falstaff, the Grantor give Blackacre to Prince Hal, but retain a life estate in Blackacre.”

A way to set up a life estate for another person is for a fee simple property owner to convey property to another person as the life tenant and to yet another person as the remainder interest owner.  The deed may look like this: “I, Hotspur, convey Blackacre to Falstaff for life, with a remainder interest to Prince Hal.”

Will Medicaid Count a Life Estate for Eligibility Purposes?

In Georgia a life estate interest is a Medicaid-countable asset unless the property itself is not countable for some other reason (probably because it is the primary residence). In North Carolina a life estate is not countable . . . it simply renders the property regardless of value or size or type as a noncountable asset for Medicaid purposes.

Can the State Collect On Life Estate Property?

No. That is the beauty of a life estate. North Carolina only collects against probate property (and a life estate is not probate property . . . remember, it passes automatically at the life tenant’s death). The Georgia Department of Community Health says they can do it, but they never have and, unless the General Assembly drastically changes the law, they never will (Hint: read above about how a creditor goes “Poof!”).

Are There Other Medicaid Problems?

Yep. Remember that if you transfer something valuable it will not count as an asset for Medicaid (you don’t own it anymore, after all!). However, the transfer will raise issues of whether a transfer penalty should apply. If Falstaff transfers $100,000 cash it will not count because he does not own it; however . . . in Georgia it will count as a transfer penalty of about 20 months and in North Carolina about 16 months if Falstaff applies for Medicaid within five years of the transfer.

The problem with setting up a life estate is that most of the time something valuable is being conveyed. For example, if Falstaff is 70 years old, Medicaid uses an actuarial chart that shows Falstaff’s life estate to be worth about 70% of the value of the property, and Prince Hal’s remainder interest to be worth 30% of the property value.

If Blackacre is worth $100,000 and Falstaff sets up the life estate by transferring the remainder interest to Prince Hal, then Falstaff has transferred property worth about $30,000 (assuming Blackacre is worth $100,000). If Falstaff applies for Medicaid within five years he has a $30,000 transfer issue to deal with.

On the other hand, Falstaff could have sold Prince Hal the remainder interest and there would be no problem.

One planning strategy that is occasionally used is for Falstaff to buy a life estate. If he pays $70,000 for the life estate in Blackacre, he will pay fair market value so there will be no transfer penalty. Further, in North Carolina the life estate won’t be countable as an asset (it will be in Georgia unless it is his residence).

A Final Life Estate Problem

The last paragraph sounded pretty neat, hunh? Not so fast. The rules slow that up a bit by saying that if the life estate purchased was in property that was “the home of another person” then Falstaff would actually have to live in the property for at least 12 continuous months. If he doesn’t live there 12 months or more, there will be a transfer penalty on the purchase even though he may have paid fair market value. If the property was not the home of another person, Falstaff should be OK.

Flying to the Rescue (From Texas?): Lady Bird Deeds

I have no idea why they’re called Lady Bird Deeds or if Lady Bird Johnson used them (although her husband was one of Medicaid’s Founding Fathers).

A Lady Bird deed looks like a standard life estate deed at first glance, except that the Grantor retains the right to change his mind or give the remainder interest to someone else. “I, Falstaff, give Backacre to Prince Hal, but I retain a life estate in Blackacre and further retain the right to cancel this deed or to give the remainder interest to any other person so named.”

Would you pay Falstaff money for the remainder interest? Of course you wouldn’t. The remainder interest is worthless because Falstaff could always change his mind. On the other hand, if Falstaff dies without changing his mind, Prince Hal will automatically take Blackacre.

In North Carolina, because the remainder interest has no value Falstaff has not made a valuable transfer and there is no penalty. Further, on his death the property should pass free of estate recovery. Lady Bird deeds have worked fine for years. They do make me a bit nervous . . . they seem just . . . too easy. I’ll use them, but only if nothing else will work.

Georgia has an open season on Lady Birds. They don’t work. Period.

You have that uneasy feeling that you ought to be doing something . . . just not sure what. Perhaps Mom or Dad has been exhibiting some troubling health symptoms. As the oldest/only/closest child you know that it will be up to you to come up with a solution.

You’ve also been reading the news.

Once the 2012 elections are over and a new Congress is seated, Medicaid rules may likely tighten. It really will not matter which party comes out on top: It will become ever more difficult to qualify for this program as Congress authorizes and directs the states to revise rules.

The Forecast

Social Security, Medicare, and Medicaid are in trouble. Across the political spectrum, from secretaries Geithner and Sebelius to Mitt Romney and Paul Ryan, the alarm is being raised. The only thing the politicos disagree on is what to do. On April 24 the trustees of the Medicare program released their annual report with 3 different sets of numbers (“bleak, bleaker, and bleakest” according to Medscape Medical News).

So desperate is the government getting for money that cuts in Medicare reimbursements to nursing homes, aggravated by Medicaid cuts, will likely cause as much as 35% of nursing homes to reduce staffing – and North Carolina is the third hardest hit state (according to a study by the Alliance for Quality Nursing Home Care).

The financial crisis has set the stage for the problems, but all social programs directed to older population will feel intense pressure from the Boomers “coming of age” and having the nerve to live longer.

Some states are squeezing now. An excellent Wall Street Journal describes this in some detail.

Although the numbers discussed show the programs becoming insolvent at current levels within 10 to 15 years, do not be lulled into complacency:  Action will need to be taken very soon to begin to turn the tide.

While I have real misgivings about the way long term Medicaid is currently designed and believe that there are rational approaches to saving huge amounts, the current program and rules are all I have to use for the benefit of my clients.

So . . . What To Do?

Plan early. When the rules change, they almost always change prospectively, not retroactively. In other words, harsher rules will likely apply to planning strategies implemented after the new rules become effective.

Failure to adequately plan early runs not only the risk of being hit with higher rules hurdles, but leaving a family with fewer options if a parent’s health suddenly declines. There is a medical analogy here: The longer a bothersome problem is left untreated, the more intensive will be the final remedy (if one is even available).

So where does planning start?

Get educated!

First, become familiar with Medicaid. There are all sorts of resources online. I have written a “Plain English” guide to North Carolina Nursing Home Medicaid that is available online (fill out the online request form and I’ll even send you a paper copy – which also contains a valuable planning offer).

Learn about trusts. I have a number of informative articles posted on the Mason Law, PC website. There are also hundreds of articles on the web.

If you’re looking for something more comprehensive with planning guides and forms, tryElderLawUniversity. It is not free, but it is not too expensive either. Fair disclosure:ElderLawUniversityis my brainchild.

In May the Friends of the Asheboro Library and I will be hosting a series of three seminars that might get you started on planning. Click HERE for more details on these three seminars.

Get qualified help. Many of the news outlet articles I mentioned above urge people to get the help of a qualified elder law attorney. I know of at least one! On the other hand, there are other sources to find qualified help.

A good elder law attorney need not be certified, but a certified elder law attorney will be good. Check the North Carolina Board of Legal Specialization for board certified elder law attorneys.

The National Academy of Elder Law Attorneys (NAELA) is an organization representing almost all elder law attorneys in the US. The NAELA website has a geographically searchable directory. In fact, if an attorney is not a member of NAELA, he or she likely is not serious about practicing in the elder law specialty.

To recap:

• Don’t dither!
• Get educated!
• Get help!

Does your power of attorney have all the muscle that it needs? A flabby, wimpy power of attorney can be dangerous because it may lull you into a false sense of security and leave you susceptible to getting smacked when you thought you were protected.

Often, one of the first documents I ask a new client to show me is a power of attorney. Then I perform what must seem like a strange ritual as I spend 30 seconds feverishly flipping through pages and scanning the document. At that point I either smile and nod or frown and shake my head. I have been looking for specific powers; for muscle.

Last year I discussed the basics of powers of attorney . . . what they are, the different types, and why they are so important. If you are the least bit uncertain, go back and review that post . . . in fact, if you have about 30 minutes grab a note pad and pen and watch the video posted in that article. Then come back here!

Is Your Fiduciary Faithful – Are His Bona Fides In Order?

Under state law, the person making the POA (the principal) and the person authorized to act (the agent or the attorney in fact – they mean the same thing) are said to be in a fiduciary relationship. The word “fiduciary” is based on the Latin “fide” or “faith”. As in simper fidelis or Fidelity Bank or bona fide.

Fiduciaries are governed both by statute and common law (common law is law that is generally agreed upon by all and sort of “just out there”). A fiduciary is subject to a number of rules that are essentially legal applications of practical ideas of diligence, loyalty and fair dealing. In the context of POAs, however, those rules pose some important considerations.

Perhaps primary among those rules is the duty to conserve the principal’s assets for the benefit of the principal and to avoid commingling the principal’s assets with the agent’s assets . . . or, for that matter, to avoid self-dealing (keep your hands out of the cookie jar!).

Those rules are a good “default setting” because they protect the principal from carelessly giving too much power to an unsuitable agent. On the other hand, those rules prohibit gifting.

The Gift That Keeps On Giving

Gifting can be an important authority. As I tell my clients, “by ‘gifting,’ we aren’t talking about birthdays and Christmas, we’re talking about the ability to freely transfer assets out of the name of the principal.” The ability to undertake a series of carefully planned “gifts” can be essential to a sound estate planning or asset preservation strategy.

A North Carolina statute specifically prohibits gifting under a power of attorney if the document is silent as to gifting. If you enjoy looking up such things, look at N.C.G.S. § 32A-14.1. (By the way, Georgia readers, the same is true under Georgia common law.) In other words, a short power of attorney that says “I give my agent full power and authority to do anything and everything I could do for myself” does not authorize gifting if that topic is not specifically addressed.

And that, Dear Reader, is one of the first things I am looking for when I scan a power of attorney and I know the engagement is likely to involve various asset preservation strategies.

Gifting Powers . . . But Not Really

Another problem I often encounter is the North Carolina statutory short form power of attorney. That is a one or two page form. After a general paragraph that appoints a person “to act in my name in any way which I could act for myself, with respect to the following matters as each of them is defined in Chapter 32A of the North Carolina General Statutes” there follows a series of powers for the principal to initial in order to confer the power. The latest version has 17 different powers, including the power to make gifts . . . even to the agent himself or herself.

These are dangerous forms because they lull people into a false sense of security. The danger comes in the words “as each of them is defined in Chapter 32A of the North Carolina General Statutes.” When it comes to gifting, section 32A-2 of the General Statutes says that in the short form the gifting election means the agent may make gifts of the principal’s assets “in accordance with the principal’s personal history of making or joining in the making of lifetime gifts.”

The problem is that not many people have established a “personal history” of gifting the residence or a farm or other substantial assets . . . even to a spouse! Someone with a statutory short form may think she is covered, but a responsible agent may later discover that that is not at all the case.

The principal, of course, is free to alter the common law or statutory law principles that apply to fiduciaries when she has her POA prepared. That is the key to a well-drafted and thoughtful power of attorney.

Problems With Gifting

Many people are understandably nervous about granting gifting authority to an agent, but some limits on the agent can be put in place. For example, an agent may be given unlimited authority to make gifts to a select group of family members as long as the agent secures the written permission of certain other individuals.

Many POAs attempt to control an agent’s ability to gift by saying something like “my agent may make gifts in an amount not to exceed the federal annual gift tax exclusion.” Be careful of this. That language was inserted as an easy way to put some sort of “reasonable” restriction on gifting ability. The federal annual gift tax exclusion currently is $13,000 to as many individuals as the person making gifts wishes to favor. In a POA, however, limiting the ability of an agent to make gifts to that amount can render the gifting authority nearly useless if there are substantial assets that need to be conveyed. For example, a $13,000 limit on gifts can make conveying a residence or large sum of money difficult, if not impossible.

Other Powers To Think Of

In addition to gifting powers, there are a number of other powers that may require specific attention in a well-drafted POA.

• Real Property

Real property law (land and things on the land) tends to be intricate and the law varies greatly from state to state. Often there are many surprises (many not pleasant) in the law that could restrict the ability of an agent to transfer the principal’s interests in real property.

With that in mind, specifically defining in a POA what an agent may or may not do with real property might be wise.

• Retirement Assets

Everything that could be said with respect to real property applies to retirement assets . . . except for the fact that most retirement plans (IRAs, 401(k) Plans, pensions) are controlled by federal law. A good POA will describe what an agent may or may not do with respect to retirement assets.

• Establishing and Dealing With Trusts

Most states have statutes that pertain to whether an agent may establish a trust on behalf of a principal . . . and most of those statutes require the POA to specifically describe what an agent may accomplish on behalf of the principal with respect to trusts if the agent is to have any authority at all.

• The authority should address both revocable trusts and irrevocable trusts.

Keep in mind that establishing a trust and using the principal’s assets might also be an indirect gift. For example, a trust may provide that the principal will receive income for life, and upon the death of the principal the trust will be distributed to other individuals. In that case, trust authorization language should be used together with gift authorization language.

As with gifting, the agent’s authority to establish and fund trusts can be tied to some external authority (perhaps the approval of another individual).

So . . .

Pull out your power of attorney. Is it up to protecting you? Or do you have a wimp on your hands?

Questions?  Leave a comment below and I’ll respond.