Category: Technical Articles

Medicaid Estate Recovery after Schoukroun

On: By: Bill Gatesman

A technical Article for Maryland Elder Law Practitioners

Soon after the opinion was issued, this writer posted an article discussing the case, Schoukroun v. Karsenty (Md. App. December 11, 2007), which article you may access by clicking on the case name in this sentence. That article suggests that the court-created augmented estate rule set forth in that opinion might have implications in the Medicaid planning context.

There are other rules that are important for Elder Law Practitioners to bear in mind when considering the implications of Schoukroun.

Continue reading “Medicaid Estate Recovery after Schoukroun” →

Can a guardian be paid for services after the ward has died?

On: By: Bill Gatesman

Battley v. Banks (Md. App. December 20, 2007)

The Gatesman Law Office assists clients in the appointment of a guardian for persons who become incapacitated and cannot make personal or financial decisions for themselves. Guardians are entitled to be compensated for their services, but they must petition the guardianship court for approval of such compensation.

When the disabled person, called the “ward” of the court, dies, the guardian must prepare a final account of the ward’s assets. That account should include the guardian’s final request for compensation.

Whether the guardian may pay such compensation to himself out of the guardianship assets before the ward’s assets are turned over the personal representative of the ward’s probate estate depended on the county in which the ward resided. The courts in different counties applied different rules.

Now, however, the rule is clear. Continue reading “Can a guardian be paid for services after the ward has died?” →

Appeals Court Imposes Augmented Estate Rules

On: By: Bill Gatesman

Schoukroun v. Karsenty (Md. App. December 11, 2007). A Technical Article for Maryland Elder Law and Estate Planning Attorneys

The Maryland Court of Special Appeals, in a seismic shift to the estates and trusts law of Maryland, issued an opinion on December 11, 2007, imposing augmented estate rules on the State of Maryland. This decision has significant consequences affecting Medicaid asset preservation planners, estate planners, family law practitioners and CPAs.

Prior to this decision, the Maryland legislature, despite years long advocacy by some members of the Estates and Trusts section of the Maryland State Bar Association, refused to add augmented estate rules to the estates and trusts law of Maryland.

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What is the value of a life estate?

On: By: Bill Gatesman

A technical notice for Maryland elder law professionals.

When a homeowner executes a deed retaining for himself a life estate, such action will be considered a transfer of resources for Medicaid eligibility purposes. However, the homeowner has not given away the entire property. What the homeowner has given away is a remainder interest, that is, the right to own the property after the homeowner dies.

The value of the transferred remainder interest depends on the age of the homeowner who retains the life estate. Maryland uses a table, Schedule MA-7, to assign value both to the transferred remainder interest and to the retained life estate. You may view that table by clicking here: Life Estate and Remainder Interest Table.

Using Fiction to Obtain Medicaid Eligibility

On: By: Bill Gatesman

A technical article for Maryland elder law professionals.

Another lawyer called recently and asked me how to resolve a problem faced by one of his clients. When I told him what to do, he remarked: “You’re making that up!” He was right about my “making that up” because my solution involved employing a fiction to obtain the desired result.

There are two ways an asset preservation planner may use fiction to help a client to qualify for Medicaid benefits. The first is getting a court order nunc pro tunc, and the second is to use a special power of attorney.

Continue reading “Using Fiction to Obtain Medicaid Eligibility” →

Gifts by Spouse Cause Medicaid Ineligibility

On: By: Bill Gatesman

A technical notice for consumers and Maryland elder law professionals.

In a dramatic shift in Medicaid policy, Maryland now will look at asset transfers by a spouse living in the community to determine whether the spouse in the nursing home may continue to receive Medicaid benefits. Previously, once Medicaid eligibility was granted, the community spouse could make gifts of assets or create a life estate deed with no adverse consequence to the spouse in the nursing home. Now, however, the Maryland Medicaid authorities state that such actions by the community spouse will cause the spouse in the nursing home to lose Medicaid benefits. Click the Contact Us link at the top of the page if you would like to learn more about this recent development in the law.

Intense Scrutiny for Third Party Trusts

On: By: Bill Gatesman

A technical article for Maryland elder law professionals.

Elder law lawyers are familiar with third party trusts authorized by the Omnibus Budget Reconciliation Act of 1993 (OBRA ’93), which third party trusts are addressed in 42 U.S.C. 1396p(c)(2)(B). With such a trust an individual can set aside assets for a disabled person under age 65 and not cause such disabled beneficiary to lose Supplemental Security Income (SSI) or Medicaid benefits. Moreover, the person who creates and funds the trust will not become ineligible to receive such benefits as a consequence of funding the trust.

The Gatesman Law Office now is negotiating with the Maryland Medicaid authority over Maryland’s imposition of strict requirements not found in the law allowing the use of such trusts. In particular, for a so-called c2B trust, Maryland will require the following:

Continue reading “Intense Scrutiny for Third Party Trusts” →

Maryland Changes its Medicaid Rules

On: By: Bill Gatesman

Maryland has issued new regulations making significant changes to Medicaid law. These changes affect many individuals who have done Medicaid planning in the past. This article will discuss the changes and show how they might affect you. Because these new rules drastically alter the assumptions that underlay all previously considered plans, prudence suggests that all existing asset preservation plans be reconsidered. These new regulations deal with Federal rule changes and many of the points discussed below will apply in D.C. and other States as well. This office has been working to develop strategies to address these new rules. Continue reading “Maryland Changes its Medicaid Rules” →