The Split Gift & Annuity Plan (Creating and then Curing Penalties

 The Split Gift & Annuity Plan
(Creating and then Curing Penalties)

Long Term Care Medicaid is a welfare based program. This means that in order to qualify for Medicaid a person must not only have a medical need, but they must also financially qualify by having less than $2,000 in countable assets. A person, who has more than $2,000 in assets, can expect to pay privately until the money runs out and they qualify financially for Medicaid.

Many seniors are distressed by the idea of their life savings being drained to pay for final expensive days in a nursing home. They worry about how they will get by with only $50 in income once they are on Medicaid, and they wanted to leave behind an inheritance for their children. In some cases it may be possible to do emergency plans that can protect a portion of the assets from being spent down for Medicaid. We call this strategy a Split Gift & Annuity Plan.

Reducing assets to $2,000 can be accomplished by either giving away the assets or turning the assets into income for the Medicaid Applicant. The Split Gift Annuity Plan uses a combination of both techniques to shelter some of the assets while still providing payment for the applicant’s care.

Who This Plan is Good For

  • Single clients about to receive nursing home care with children, or others who they trust and want to inherit.
  • Clients who do not have other penalty free transfers available to them.
  • Clients who have already pre-purchased funerals, spent down assets, and still have assets left over.
  • Clients with at least $100,000 in assets half of which are liquid.

Making the Gift

The government does not want to encourage people who could pay for their care to give away their assets, so they penalize gifts.  Making gifts is not illegal, but is discouraged through the rules of Medicaid. Any gifts made within five years of your Medicaid application (the “look back” period) will cause a period of Medicaid ineligibility. Gifts made more than 60 months before your application need not be reported and will not be penalized. Once the gift is made, it will be penalized unless it is returned in full. A partial return of the gift will not shorten the penalty period.

Gifts made within this “look back” period will cause you to be ineligible for Medicaid for one month for every $6,327 transferred.  In other words, if you were to transfer $63,270, you would be ineligible for full Medicaid for 10 months ($63,270 divided by $6,327= 10 months).

During this penalty period when you are on Restrictive Medicaid, Medicaid does not pay for your nursing home care. This means you need to find another way to pay for your nursing home bill. However, the clock on the penalty period does not start until you are otherwise qualified for Medicaid (remember you must have less than $2,000 to qualify). With less than $2,000 in assets, there must be another way to pay for care during the penalty period without returning the gift. To accomplish this, we use a Medicaid Qualified Annuity.

Paying During the Penalty Period

During the penalty period, you will be required to come up with the funds for this nursing home bill elsewhere. Your regular income from Social Security or pensions will presumably cover part of the costs, but presumably you will still need some other way to supplement your income to afford your nursing home bill. To accomplish this, you use a portion of your assets not gifted away to purchase a Medicaid Qualified Annuity to pay for your care during the penalty period. Each month, the annuity will provide a guaranteed payment. Once the penalty period has passed, your annuity will run out and Medicaid will kick in and pay for all your care. The gifted assets will then be in your children’s hands, and Medicaid will not be able to come back for them.

Dealing with High Income

Medicaid has income limits that do not allow people to qualify for Medicaid without a special type of trust. If a person’s income is over $2,199, in order to qualify for Medicaid they will need to place their excess income in a Qualified Income Trust (QIT). Because the annuity will raise the applicant’s income over the limit, a QIT will need to be set up during the penalty period. Many people do not need the QIT after the penalty period has passed. For more information, please ask your attorney.

Possible Problems

While the Split-Gift Annuity Plan can work very well when used appropriately, there are some risks involved. There can be tax consequences. The people who receive the gift may run into issues while holding onto it. Sometimes a change in the applicant’s health or a death can interfere with the plan.

Because assets need to be liquid in order for this type of plan to work, you may be required to cash out assets. This may cause unfavorable income tax consequences. If IRA or 401K assets are liquidated, every dollar is taxable.  Withdrawing a large sum may also put you into a higher tax bracket. Accumulated income on deferred annuities and savings bonds are taxable. You may also have capital gains if you liquidate appreciated assets.  Depending on your circumstances, the cost of medical care may be deducted from your taxes.

Once the applicant gives away their assets, they lose all control over them. A gift to your children means that the funds transferred belong to them, no matter what promises they may make to hold them for you. The funds are vulnerable in the event of a child’s death, divorce, a lawsuit, bankruptcy, or the child’s decision to simply use the funds for herself. If these issues are a concern, a special type of trust can protect against some of these possibilities.

Another thing to consider is the applicant’s health. If an annuity is calculated for 10 months, but the applicant goes into the hospital for a month, they don’t need the money to cover nursing home costs during that time and will have too many assets to continue to qualify for Medicaid. Sixty-eight percent of nursing home stays last less than three months, however many last significantly longer than this. Sometimes if the applicant is in very poor health and may pass away before the penalty period would pass, it may make more sense to pay privately to avoid tax burdens and administrative costs.

It is important to remember Medicaid law is complex and dynamic. Not every plan will work for every situation. There may be better options available to you and your family. You should always consult a qualified elder law attorney before attempting any Medicaid transfer plan.

Hypothetical Example

Claire needs long term care. Her nursing home costs $7,500 a month. She has $126,540 in assets. She receives $1,250 in income each month. She has two children, Annie and Bobby. Under the supervision of her attorney, Claire splits her assets in half and gifts half ($63,270) to her two children, and uses the other half to purchase herself a Medicaid Qualified Annuity that pays her an income of $6,250 a month guaranteed for ten months.

She then applies for Medicaid, and is put on Restrictive Medicaid for ten months (due to the gift). During the penalty period she uses the annuity and her income to pay privately for her care for ten months. Because her income is high, she will need a Qualified Income Trust during this period.

At the end of the ten months the annuity is all used up. Her income drops back down to $1,250 a month and Medicaid pays for her care. The children have a bank account in their names with $63,270 in it. They use this to pay for any extra things Claire may need during her life time. When Claire dies, they divide the bank account as an inheritance.

 

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