William M. Gatesman, Attorney at Law

William M. Gatesman assists clients in Maryland and D.C. in the areas of elder law and Medicaid planning, asset protection planning, special needs planning, estate planning, probate and estate administration, wills, trusts, powers of attorney, and health care decision making documents.  Mr. Gatesman is available to meet with clients in his offices in Rockville, Columbia, Frederick and Hagerstown, Maryland, and is available to make house calls as needed in those locations and in other areas of Maryland and D.C.

Call 301-260-0095 for more information or to make an appointment.

The purpose of this website is to educate consumers and their advocates regarding legal developments that may affect their lives. Mr. Gatesman has written the articles that follow on this website, organized by date of publication. To assist you in locating articles of interest, there is a search feature and a subject matter index in the column on the right side as you scroll down this page. You also may sign up to receive newly published articles by email in the newsletter signup box on the right.

Applying for Medicaid Gives State Access to Bank Records

In order to combat fraud and abuse, Congress passed a law in 2008 (referred to in this article as the “Asset Verification Statute”), which law just now is being implemented in Maryland, directing States to impose an electronic asset verification process to facilitate asset disclosure relating to Medicaid applications for long term care.

When Disclosure is allowed.  In most instances, under Federal law, banks may not disclose one’s financial records to the government except where there is a valid law enforcement or judicial subpoena or summons, or a search warrant.  However, that same federal law allows the account holders themselves to authorize such disclosure through a written instrument.

The Asset Verification Statute directs that States that provide Medicaid benefits to aged, blind or disabled persons to cover the costs of long term care in a nursing home, or care in assisted living or at home, require the applicants for such benefit programs to provide written authorization to the State to obtain documentation from banks and other financial institutions for accounts owned by the applicant or by any other person (such as the applicant’s spouse) whose assets are considered when one applies for such benefits.

Limited Purpose for Disclosure.  The Asset Verification Statute specifies that the State’s acquisition of such financial information is to be used for the purpose of determining or redetermining eligibility for the benefit programs.  The authorization under the Asset Verification Statute ceases once the State issues a final notice that the applicant is not eligible for benefits, upon the cessation of benefits for such individual, or upon the individual’s written notice that the individual is withdrawing  his or her authorization.

Impact on Spouses.  Not specifically addressed in the Asset Verification Statute is when the authorization will cease with respect to a third party, such as the Medicaid applicant’s spouse, when such spouse’s financial records are no longer relevant to the Medicaid recipient’s recertification for benefits.  In Maryland, once a married person qualifies for Medicaid benefits for long term care, the assets and income of that person’s spouse, while relevant to the initial Medicaid eligibility determination, are ignored for future Medication redetermination applications.

Banks Must Notify Customer.  Other Federal statutes underpinning the Asset Verification Statute empower the owner of financial accounts to obtain from the financial institution a record of the disclosures made to the government pursuant to the Asset Verification Statute or pursuant to other statutory authorization.

State Access Without Customer Consent.  Notably,  while the Asset Verification Statute requires that the State obtain written authorization from the account holder before the State may obtain information and documentation from a financial institution, it does not require that the State provide a copy of such written authorization to the financial institutions from which the State will obtain information and records.  That being the case, States will, under the Asset Verification Statute, obtain through electronic means financial information without having to provide the financial institution with the customer’s authorization for the release of such information.

Implementation in Maryland.  Already in at least one county in Maryland, the local Department of Social Services which processes Medicaid recertification applications no longer will be seeking to have Medicaid recipients submit copies of bank statements when they re-apply on an annual basis for the continuation of Medicaid benefits for long term care.  Instead, the department of social services simply will obtain an electronic record of the Medicaid recipient’s bank account activity for the year.  In a recent discussion with other Medicaid lawyers, it is not clear whether this new practice is supported by the requisite written authorization of the Medicaid recipient.

Maryland Authorization Form Insufficient.  Indeed, the local Departments of Social Services in Maryland still are using a Medicaid recertification application that was last revised in 2011, which revision, while it came after the passage of the 2008 Asset Verification Statute, nevertheless occurred before the State of Maryland began its present implementation of the 2008 law.  Maryland’s Medicaid recertification application states, immediately prior to the signature block to be signed by the Medicaid recipient and the recipient’s spouse, that the person signing the document “authorize[s] any person, partnership, corporation, association, or governmental agency which knows the facts relevant to determining my eligibility [for Medicaid benefits] to release that information to the Department.” (I will refer below to this language as the “Authorizing Verbiage”).  While arguably a financial institution that is a corporation or association and that has the records of the Medicaid recipient’s financial accounts “knows . . . facts relevant to determining . . . eligibility,” it appears that the Authorizing Verbiage falls far short of the language required by the statutes underlying the Asset Verification Statute.

Under Federal law, any authorization that would allow disclosure of one’s financial information must authorize disclosure for a period of three months or less, must state that the customer may revoke such authorization any time before the disclosure is made, must identify the financial records which are authorized to be disclosed, must specify the purposes for which the disclosed information will be used and the government agency who will receive such information, and must set forth the customer’s statutory right to obtain a record from the financial institution of the instances of disclosure and the recipient of such disclosures.  Clearly, the Authorizing Verbiage found on Maryland’s long term care Medicaid recertification application does not meet these standards.

William M. Gatesman continues the evaluate the implications of Maryland’s implementation of the Asset Verification Statute and its impact on clients, and Mr. Gatesman takes into account Maryland’s new practice of obtaining asset information when representing clients who are applying for Medicaid benefits.

42 U.S. Code § 1396w
12 U.S. Code §§ 3402, 3403, and 3404

D4a Trust Review

#
Tara Bersani
410-767-5682
mdh.sntpsnt@maryland.gov
send trust by email

Sheltering Assets to Maintain Housing Benefits

Various articles on this website address ways in which aged or disabled persons may protect their assets and still get government benefits such as Medicaid for long term care in a nursing home, or Medicaid for health care in the community.  By retaining accumulated assets or protecting assets one is about to inherit, an individual can ensure for herself a better quality of life, especially when the only other alternative is to fully impoverish oneself to retain government benefits.

One tool lawyers utilize to enable clients to shelter assets is a trust.  There are various types of trusts that can be employed depending on the individual’s circumstances, and each type of trust has its advantages and disadvantages.

For example, the law will allow a disabled person to keep his or her accumulated wealth to allow for a higher quality of life and to still obtain Medicaid benefits.  [Such opportunity is separate and distinct from the benefit under the Affordable Care Act which allows non-disabled people with low incomes to obtain Medicaid health insurance.  Moreover, this long-standing opportunity afforded to disabled persons likely will persist even if the President and Congress were to repeal the Affordable Care Act as they have threatened to do.] Click here to read the rest of the story…

Trustee’s Liability for Contractor’s Work

Whether you are a Trustee of a trust that owns real property, a Personal Representative of a decedent’s estate that holds real property, or simply a homeowner, it is important for you to know your potential liability when you engage a contractor to perform work on the property if an employee of the contractor gets hurt on the job.

Many home service contractors do not carry worker’s compensation insurance coverage for their employees.  This is especially notable with tree service contractors.  The same men who climb trees with powerful chain saws to cut limbs and tree trunks while hanging from a rope around their waists in one of the most dangerous home service professions often find it prohibitively expensive to pay the premiums for worker’s compensation insurance, and therefore do not obtain such coverage.

The problem with that is, if one of the workers is injured on the job, even if that person is an employee of the contractor, then the law may treat such injured worker as your employee for liability purposes.  And, unless you, as Trustee or homeowner, have worker’s compensation insurance to cover this particular type of worker – and obtaining such coverage for the once in a blue moon tree cutter or other home service contractor likely is not possible – then the potential liability is unlimited. Click here to read the rest of the story…

The Secret World of Medicaid Regulation

Potential clients sometimes ask William Gatesman whether they can pursue their legal matters themselves.  Often, the advice in response to such an inquiry is that the client would obtain a more favorable outcome using the services of a knowledgeable lawyer.  A key component of that advice is that the lawyer should be knowledgeable.

Unfortunately for the general public, when it comes to applying for Medicaid benefits, there is a limited pool of lawyers in Maryland who can be viewed as being truly knowledgeable about all of the nuances in the Medicaid eligibility rules.

This should not be the case.  Maryland law, and in particular, the Maryland Administrative Procedures Act, mandates that the rules governing such matters as the Maryland Medicaid program be promulgated and implemented through a transparent public process.  Through that process, such rules are to be disclosed and maintained in a manner to make them easily accessible to the public.

Unfortunately, with respect to the Maryland Medicaid program, some of the rules are complex, hidden, and accessible by only a few who know where and when to look for them.  One of the problems arises because Medicaid is a joint Federal and State program.  Notwithstanding that, the rules as they apply in Maryland (Medicaid rules vary state by state) should be put in place in accordance with the Administrative Procedures Act, however, the Maryland Administrative Procedures Act routinely is disregarded.  Indeed, a senior Medicaid official recently advised William Gatesman that there is an administrative freeze by the Maryland Governor that prohibits any action toward implementing new regulations.

So, then, how do Medicaid lawyers in Maryland know what are the rules that apply to their clients?  Sadly, sometimes the answer to that question is that some of those lawyers don’t know. Click here to read the rest of the story…

Don’t Let the Notary Public Skip a Step

Many legal documents, such as deeds, trusts, powers of attorney, and contracts, either require, or are made more legitimate, by having a notary public sign the document. This is referred to as “notarizing” the document.

In Maryland, a person who is a Notary Public must obtain a license, must be sworn in by an officer of the Circuit Court, and must follow certain rules in the exercise of the Notary Public’s powers. A Notary Public must ensure that she knows the person who is signing the document. This usually is accomplished by the Notary Public reviewing that person’s driver’s license or passport.

Then, after witnessing the individual sign the document, the Notary Public will complete what is known as a Notary Jurat, which is a section of the legal document in which the Notary Public enters certain information, including the expiration date of the Notary Public’s license, signs the document, and affixes his or her seal to the document, which seal often takes the form of a special ink stamp on the document page.

In addition to those actions, the rules governing the actions of a Notary Public require that the Notary Public maintain a “fair register” of all of the acts undertaken by the Notary Public. This is one step that often is overlooked. There are lawyers who also are licensed Notary Publics who will witness a client’s signature to a document but might overlook recording the action in a Notary Public fair register. Indeed, I have encountered some lawyer-Notary Publics who were unaware of the requirement to maintain a contemporaneous fair register.

The fair register is an important record because, if a client ever requested it, the Notary Public has an obligation to provide such client with a certified copy of the record of the act that was notarized. For example, some years after a legal document is signed, if there is a question as to the legitimacy of the signature, a party to the legal document may seek out the Notary Public to request a certified copy of the fair register entry memorializing the execution of such legal document. If the notary public did not make an entry in a fair register and did not maintain that fair register as required under the law and regulations governing Notary Publics, then it would be impossible to obtain such a certified copy at some future time.

Knowing these rules, a client who signs a document requiring notarization could make an appropriate inquiry with the Notary Public if the Notary Public did not ask the client to sign Notary Public’s fair register.

William M. Gatesman is both a lawyer and a licensed Notary Public, and is available to assist clients in both capacities.

Locating Deceased Person’s Assets in a Digital Age

More and more financial institutions are pushing their customers to forgo receiving paper account statements and instead receive all of their statements and account correspondence electronically. What happens, then, when the account holder dies?

In the age before digital communication, when someone died, if the identity and extent of the deceased person’s asset holdings was not apparent to the estate administrator, one simply had to wait a month or so to receive the decedent’s mail to discover most, if not all of the decedent’s financial accounts. Eventually, it would be apparent what accounts were owned by the deceased person.

All of that has changed for someone who does all of their financial business online, however. What happens, then, when a forward-looking, media-savvy loved one dies, and you discover that the deceased person received no paper financial statements, and kept all of her financial data on her computer rather than in paper files? Click here to read the rest of the story…

Are You Paying Too Much to Apply for Medicaid?

The requirements imposed upon individuals seeking Medicaid benefits to pay nursing home costs have become less onerous in recent years.  For many years, Medicaid applicants were required to submit monthly statements for every bank and investment account for every one of the 60 months preceding the filing of the Medicaid application.  Under that regime, someone with only 4 bank accounts would have to submit 240 individual account statements.  Then, once those statements were submitted, they were reviewed by a Medicaid caseworker who was on the lookout for any “questionable” transactions.

“Questionable” transactions include unexplained deposits and substantial expenditures.  Therefore, unless the source is obvious from the account statement, any deposit showing up on those 240 statements would be questioned by the Medicaid caseworker seeking to ascertain the source of the funds deposited, and any payment of $1,000 or more likewise would be called into question.  The problem is magnified if the applicant or the applicant’s spouse had any additional bank or investment accounts.

That being the case, in order to be prepared to address a Medicaid caseworker’s questions, lawyers assisting Medicaid applicants under the old system would review all of the bank statements and seek explanations from the applicant or applicant’s family for any transactions that likely would be questioned.  That process could be time consuming, and, if the law firm performing such review billed the client on an hourly basis, then the legal fees to pursue the Medicaid application would be high.

In recent years, however, the Medicaid application process has been streamlined.  No longer is a Medicaid applicant required to submit 60 individual account statements for each of the 60 months preceding the month the Medicaid application is filed.  Now, applicants need only submit a few statements for the most recent months, and then a single statement for a particular month for each of the preceding five years.  Hence, under current practice, rather than submitting 60 statements for each account, an applicant only has to submit 8 statements, and it is only those 8 statements that will be scrutinized by the Medicaid caseworker.   Thus, for a Medicaid applicant with four accounts, the number of statements needed to be submitted for scrutiny was reduced from 240 to 32.

If one were to continue to operate under the old system and submit 60 monthly statements for each account, and then spend the time to closely scrutinize each of those statements and any transactions that might be called into question, then such person would  be doing extra work for little or no added benefit.

Click here to read the rest of the story…

The Steps to Selling Your House Quickly

I often work with people who, in the administration of the estate of a deceased loved one, find themselves in the position of having to sell the deceased person’s house. Useful to such clients, and to anyone else who is selling a house, are these tips, the Steps to Selling Your House Quickly, which tips one of my mentors, who has much experience investing in and selling homes, shared with me.

Click here to read the rest of the story…

« Previous Entries