Maryland Elder Law and Estate Attorney
The Law Office of William M. Gatesman
The Senior Homes website has published a guide to help consumers safeguard their loved ones who may be residing in an assisted living facility.
That guide is published at https://www.seniorhomes.com/state-by-state-guide-to-assisted-living-violations-regulations/
Did you ever notice that many legal documents, such as contracts, trusts, powers of attorney, and Wills, have the word “SEAL” printed following the signature line. Some people assume that this means that a Notary Public must place a seal in that space, but that is not what that word means.
If a person signs a document, and the document has a signature line followed by the word “SEAL”, or something similar, under the law of most states the effect of that word “SEAL” is to impose a longer statute of limitations for the enforcement of that legal document.
For example, if one signs a contract in Maryland, and it is not signed under seal, the statute of limitations for the enforcement of such contract is three years, whereas the statute of limitations for a contract under seal in Maryland is 12 years. In other words, one would have 3 years within which to enforce a contract not signed under seal and 12 years to enforce a contract signed under seal.
In days of yore, to sign a contract under seal, one would first sign the document, then drop hot wax on the paper next to one’s signature and press his signet ring into the hot wax before it cooled. Or a corporate officer might apply the corporation’s seal stamp onto the document next to the signature of that corporate officer. In today’s world, the word SEAL printed on a document next to the signature line is the modern day equivalent the signet ring seal or the equivalent of affixing a corporate seal on a written instrument.
Not knowing the implications of the word SEAL next to the signature line of a legal document could have significant consequences for the person signing such document. William M. Gatesman stands ready to assist clients with all aspects of the legal documents that they sign, including advising them regarding the implications of the words in such document.
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.
Continue reading “Are You Paying Too Much to Apply for Medicaid?”
Questions, even among experienced elder law lawyers, are (i) whether Medicare savings programs are subject to estate recovery after the program beneficiary dies, and (ii) whether making gifts causes ineligibility for Medicare savings programs.
The Medicare Savings Programs are:
1. Qualified Medicare Beneficiary (QMB)
2. Specified Low-Income Medicare Beneficiary (SLMB)
3. Qualifying Individual (QI) [known as SLMB II in Maryland]
4. Qualified Disabled and Working Individuals (QDWI).
At one time, States were allowed to recover Medicare Savings Program benefits through estate recovery, however, since 2010, when the Medicare Improvements for Patients and Providers Act MIPPA of 2008 went into effect, States are not allowed to recover for payments made for Medicare Savings Programs. States are, however, allowed to collect for Medicaid benefits other than Medicare Savings Program benefits.
For Medicaid benefits (other than Medicare Savings Program benefits) paid on behalf of an individual after such individual turned age 55, estate recovery is allowed for Medicaid payments that cover nursing facility services, home and community-based services, and related hospital and prescription drug services. In addition to estate recovery, the State can put a lien on the real property of a recipient of such benefits, however, there is a judicial process involved with placing a lien. Maryland generally relies on estate recovery and does not often place liens on real property in this context.
Regarding the implications of making a gift of one’s property, for Supplemental Security Income (SSI) benefits and for all Medicaid benefits other than Medicaid Savings Programs and for health insurance under the Affordable Care Act, a penalty is imposed when one gives away her assets, the penalty being a period of ineligibility for the benefit program as a consequence of the gift transfer. However, the rules to qualify to receive Medicare Savings Program benefits are silent regarding asset transfers, hence, there is no such transfer penalty with respect to Medicare Savings Programs.
William M. Gatesman assists clients in obtaining public benefits for their care needs, and advises clients concerning the implications of their actions with respect to their benefit eligibility.
The “Secret Handshake” refers to that gesture known only by the select few who are allowed access to an exclusive club. I use that term in the title to this article because there are times when only those lawyers who closely follow Medicaid rule changes are aware of rules that impact clients. Everyone else is left in the dark.
One example relates to the use of a certain type of special needs trust. A person under age 65 who has high medical costs that would overwhelm that person’s income and assets may use a type of trust that allows such person to put his or her limited resources into the trust to enable such person to obtain Medicaid benefits to pay that person’s medical costs. This type of trust is useful where the amount of that person’s own assets cause such person to not be eligible for State medical care benefits, but which assets and the person’s income are too low to cover that person’s medical costs. I will call such person the “Beneficiary” for purposes of this article.
For many years, this special type of trust could only be created by the Beneficiary’s parent or guardian or by a court. If the Beneficiary’s parents were not living and the Beneficiary had no court appointed guardian, then there was an added cost, the cost of petitioning a court, to establish such a trust. It would be so much easier and less costly to the Beneficiary if the Beneficiary herself could be the person who created the trust.
And then, about 5 years ago, the rules changed, such that the Beneficiary could create such a trust and it would qualify to shelter the beneficiary’s assets so the beneficiary could obtain State benefits to pay for the Beneficiary’s high care costs.
But who knew? Who was privy to the fact that this rule had changed? Is it clear even today that this rule has changed? Consider this: Today, as was the case five years ago, the Maryland Medicaid eligibility manual, available online to anyone and the rule book used by public benefits case workers to evaluate applications for benefits, states at Section 800-16(c)4 that only those trusts that are created by a parent, guardian, or a court (and otherwise meet the special requirements for such trusts) are sufficient to shelter the Beneficiary’s assets.
Notwithstanding that the Maryland Medicaid manual no longer had accurate information after the rule changed, and still, to this day, has inaccurate information as to who may create such a trust, those lawyers who knew the “secret handshake,” that is, those lawyers who were privy to the discussions about Medicaid policy became aware of such rule change. This rule change was communicated to a select few Maryland lawyers by means of an email from the Office of Eligibility Services of the Maryland Department of Health. That email is reproduced below at the bottom of this article.
For a long time after the rule changed, even the Code of Maryland Regulations was not accurate, which regulations stated, like the Maryland Medicaid manual, that only those trusts that are created by a parent, guardian, or a court (and otherwise meet the special requirements for such trust) are sufficient to shelter the Beneficiary’s assets. The State of Maryland finally got around to updating its regulations, so that the regulation set forth at the Code of Maryland Regulations, Section 10.09.24.08-2 C, now correctly states that the Beneficiary herself may create the trust and it would qualify for the favorable treatment to enable such Beneficiary to obtain state benefits to pay high medical care costs.
But for years, the only guidance as to the issue in Maryland from the Maryland regulators was the obscure email shown below. And even today, the Maryland Medicaid manual, which is the rule book used by Medicaid caseworkers to evaluate applications for public benefits, is incorrect as to the issue of who may create such a trust.
Skilled public benefits lawyers bring a lot to the table to assist persons in need to enable them to participate in public benefits programs, not the least of which is such a lawyer’s access to timely and relevant information regarding the current state of the law and regulations that impact persons in need.
A charitable organization approached me recently because a Maryland resident left a large bequest in her Will to the organization, but the language in the Will limited the gift to be used by a certain class of persons served by the charitable organization.
Unfortunately, over time, the organization that was to receive the bequest had discovered that there are so few of the types of people the bequest was intended to benefit that the organization had been directing its resources to assist others who suffered similar disabilities, just not the particular disability identified in the bequest under the Will.
Fortunately, Maryland law allows the recipient of such a bequest to obtain a Court Order expanding the scope of the Will so that the intended recipient of the bequest is able to use the gifted funds in furtherance of its charitable purposes.
William Gatesman was able to file a pleading with the Circuit Court and obtain a court order without the necessity of a court hearing, thereby enabling the charitable organization to make effective use of the bequest and fulfilling the deceased person’s charitable intentions.
The Gatesman Law Office stands ready to resolve problems that may arise in the administration of the estate of a deceased person in an efficient and economical manner.
In a time of crisis, people may wonder how they can address urgent legal needs with the least risk to themselves when governments are calling for avoiding large gatherings of people and other forms of “social distancing.”
For years, William M. Gatesman has given people the opportunity to engage in free initial consultations by means of telephone conferences and email exchanges. People have welcomed these methods, some because they are busy and appreciate the convenience of such meetings, others because they have found that some lawyers insist on high-cost meetings just to get the ball rolling, and still others for any number of other reasons.
In addition, William Gatesman has worked with clients by sending draft documents by mail or email, or both, and has addressed client questions and concerns by telephone and email. Video conference also may be used to facilitate the representation.
Often, Mr. Gatesman will wrap up the engagement with a single meeting with the client, once the preliminary matters have been addressed in the manner discussed in the paragraphs above, and sometimes, if necessary, there will be multiple additional meetings, but only if those are needed to meet the client’s needs. Some engagements, however, may be completed entirely through remote communications.
While some law firms now are struggling to try to figure out how to meet a client’s needs with less face to face interaction, the Gatesman law office has years of experience in meeting clients’ needs through various forms of communications, including face to face meetings, telephone and email consultations, and other means.
William M. Gatesman stands ready to assist you and your loved ones with your legal needs even where social distancing is the order of the day.
Please feel free to contact Mr. Gatesman by telephone at 301-260-0095, or by email at contact@gatesmanlaw.com
When making a claim in a decedent’s estate, may the claimant rely on information provided by the Register of Wills through it’s online website? Or is such reliance risky?
It is important that one who seeks to make a claim in a decedent’s estate do so within 6 months following the decedent’s death, and that the claimant follow all the rules for making such a claim. Unfortunately, there is a risk in relying on the information provided by the online estate docket for a particular estate published by the Registers of Wills in Maryland. A recent case handled by William M. Gatesman illustrates this point.
In that case, the State of Maryland filed a $120,000 claim in a decedent’s estate for Medicaid benefits paid by the State of Maryland for the nursing home costs of the decedent before she died. The rules of court governing such claims require that, if the claim is filed with the Register of Wills, it must also be sent to the Personal Representative of the estate.
In this particular case, however, the Personal Representative never received a copy of the claim, and so, she denied the claim. Maryland petitioned the probate court for allowance of the claim. During the court hearing, evidence was presented that the State of Maryland had relied on the Register of Wills web page which, at the time the claim was made, listed a particular post office box address as the address of the Personal Representative. However, that address was incorrect – apparently the Register of Wills clerk made a typographical error when entering the address on the online docket page.
The question boiled down to this: even though the State of Maryland as claimant did not send a copy of the claim to the Personal Representative at the Personal Representative’s actual address, could the claim nevertheless be valid under the rules governing claims in a decedent’s estate because Maryland sent a copy of the claim to the address of the Personal Representative shown on the Register of Wills web page pertaining to the particular estate? In other words, could the claimant rely on the information set forth on the online estate listing published by the Register of Wills?
The resolution of that question depended on a thorough analysis of the statute and rules applicable to claims in an estate, and to a review of case law regarding statutory requirements of delivery of claims in contexts other than decedent’s estates (there being no law directly on point with respect to such estates). At the probate court hearing, William M. Gatesman was prepared to present such an analysis.
In the end, the probate court ruled that Maryland failed to meet the requirement that it deliver a copy of the claim on the Personal Representative of the estate, and the Personal Representative’s denial of the $120,000 claim was upheld (i.e. Maryland was not allowed to collect on its claim).
What this story reveals is that there are technical requirements a claimant must meet in order for such claimant to collect funds owed to the claimant from a decedent’s estate, and that reliance on information published by the Register of Wills may lead to the claimant losing its opportunity to collect on its claim.
William M. Gatesman stands ready to assist clients, either as claimants in an estate, or as Personal Representatives seeking to defend an estate against claims that are not properly submitted.
Any person can obtain information relating to a decedent’s estate in Maryland through an internet search. The Maryland Register of Wills website allows anyone with an internet connection to search for the estate by the decedent’s name or by the name of the Personal Representative or executor of the estate.
The result of such search will be a listing of the estate docket. The docket list will show all documents filed in the estate, including the Will (if any), the petition for probate, the list of interested persons, the Inventory, and the estate administration accounts. One may order copies of any of these documents for a small fee. Some counties even provide for online ordering with online delivery of the documents.
A new feature of this online process allows people to search for claims against the estate, searching either by the decedent’s name or the name of the claimant or creditor of the estate.
This process can provide useful information to any person interested in the estate. While such process of obtaining information regarding decedent’s estates is simple, William M. Gatesman can assist individuals in obtaining information relating to a decedent’s estate if the process seems cumbersome or counter-intuitive.
“Keep your eye on the ball,” and “don’t drop the ball” are two oft used phrases to warn people that bad things can happen if they do not pay attention and take prompt action. Such is the case when someone dies.
I have known of circumstances where a parent died owning real estate, and due to inaction by family members, the property was foreclosed upon by the mortgage lender thereby costing the family more money than was necessary. Indeed, even with distressed properties, with prompt action one may open an estate and sell the property at better terms than what one might recover after a foreclosure.
Another example is from a recent court case. In that case, it did not come to light until years after death that a disabled person’s guardian improperly transferred the disabled person’s house to himself, and the court, by means of an internal oversight, did not take action to protect the disabled person’s property. By the time the heir who was rightfully entitled to inherit such property became aware of the matter, it was too late to recover the asset. Again, prompt action would have resulted in a more favorable outcome.
It is important that you keep your eye on the ball to ensure that proper steps are being taken to administer the affairs of a loved one after that person dies. Even if someone else had been designated to take charge of your loved one’s affairs, if that person has done nothing, then you need to step up to take charge of the situation yourself.
The penalties for inaction can be harsh. Rightful heirs and those intended to inherit a deceased person’s property could lose out on the opportunity to inherit if prompt action is not taken to protect one’s rights.
William Gatesman stands ready to assist clients in taking such prompt action, and is prepared to assist clients to protect their interests even when much time has passed since the death of a loved one.