A title search is a useful tool in elder care planning

“My Mother wants to transfer the house to us.” Preserving family assets through transfers of ownership is part of the big picture of elder care legal planning. We look at who owns what, how it’s owned, whether there are any restrictions or liens, and how to cover the costs of care after assets are transferred. From time to time a client has a different ownership interest in the property than what they think they have, and they may not even have a copy of the latest Deed. When a person is buying a house on the market, running a title search is a standard part of the process. When acquiring a house from a parent, people seem to think of it all in a different way. “Can’t you just do a quitclaim deed?”

The parent, as transferor, needs to know what they own so they can know what they are transferring. Also, if they might apply for Medicaid within 5 years, they need to know the potential “Medicaid transfer penalties” that could result from this transfer. It seems obvious, but there may be old mechanics’ liens on the property or liens left over from a program that supplied home renovations to the senior. There may be a reverse mortgage on the property that will have to be refinanced and paid off it title is transferred. The parent may own less than the full interest – perhaps they have just a half interest because the property was retitled as tenants in common with their spouse for estate planning purposes. They may only own the life estate, thinking they still own the entire property interest. There may be an adjacent lot whose title has merged with the title for the home property.

I had one case years ago in which the elderly client lived in the house and truly believed that she owned it 100%. As it turned out, she was one of a number of siblings who had inherited the property from their deceased grandparents, no estates were ever administered and no one had a Will, and the prior generation (her mother and her aunts & uncles) had an array of children as well; it turned out she only actually owned about 15% of the whole. Or as I encountered in a recent case, they may not yet own the property at all — it was left to them as part of the general residue of the estate under the Will of a deceased relative, but the tax waiver was never obtained by the Executor, it’s unknown whether all of  the estate’s obligations were paid, and the property was never transferred to the residuary beneficiary by the Executor.

The family member(s) who are receiving this gifted property also need to know just what they are acquiring, as they now will have an asset on their own balance sheets that needs to be reported under various circumstances such as an application for a loan or for financial aid. The legal rights of the recipient vary based on just what property interest they have acquired.

There are also times that changes have been made to the property by the owner or an adjacent owner, such that an updated survey might be a good idea. Many deeds have been uploaded by the County clerks and can be accessed online – here. A comprehensive title and judgment search can be ordered through a title company and will reveal whether there are other owners or encumbrances that would be an impediment to a transfer or which would create a headache for the transferee.

A real property transfer typically involves a very substantial transfer of assets. Doing the extra steps to confirm the status of the title will go along way to preventing future problems.

 

Call us for advice on elder care asset preservation planning ….. 732-382-6070

Marinaro secures Court reversal of Medicaid denial where the proof required by DMAHS just didn’t exist

The burden to prove eligibility for Medicaid rests with the applicant, but sometimes, the agency just refuses to accept the evidence they are given. This is demonstrated in a recent New Jersey case in which a denial of benefits was reversed by the Appellate court. The decision is “not approved for publication ,” which means it doesn’t establish a precedent that’s binding on other courts, but it does provide an interesting view of what can happen in a case. L.A. vs DMAHS decision

L.A and her husband established a revocable living trust for their own benefit, and transferred their house into it. Their Social Security numbers were associated with this trust. An attorney wrote the trust. The Asset Schedule  at the back of the Trust document wasn’t filled out, so nothing was shown as to the assets that were placed into the trust. Some years later, in 2012, the trustees transferred the property out of the trust into the names of L.A. and her husband. In 2017, the couple terminated the Trust — which held no assets and apparently no longer had any purpose —  and transferred the house into L.A.’s sole name. Later, a Medicaid application was filed for L.A. They didn’t disclose the Trust when they provided the 60-month look-back documents. For the look-back, one must submit records of all assets held within the prior 60 months. As noted, the Trust had not held any assets during the look-back period. The agency reviewed the Deed and asked for the Trust records. The applicant submitted the trust document, the trust termination document, and a letter from their attorney which stated that the only asset that was ever in the Trust was the house. As noted above, Schedule A to the trust was blank, so no assets were listed on the Trust. The application was denied for “failure to submit required verifications” of the assets in the trust. L.A. requested a fair hearing appeal before the Office of Administrative Law (OAL).

At the hearing before the Administrative Law Judge (ALJ), the attorney who wrote the trust testified in accordance with the letter he had written for the application, and explained that the annexed Schedule was left blank because it called for information not applicable to the situation. Both he and L.A.’s husband testified that the house was the only asset that was ever in the Trust. Tax return evidence was submitted which did not show income from any trust assets.  The ALJ concluded that they were credible, but that the explanation about the blank schedules was inadequate and that plaintiff had indeed failed to submit the “required verifications” to establish Medicaid eligibility, and upheld the denial of benefits. The DMAHS adopted that decision, and L.A. appealed, represented by our Firm. Essentially, the Final Agency Decision stood for the proposition that even when there is no proof of assets, the agency may presume that they exist, and may deny eligibility for failure to prove otherwise.

On appeal, the court reversed, ruling that the final agency decision was not supported by the record. An administrative agency must base its decision on the “substantial credible evidence” in the case record, and the appellate court can overrule an agency decision if it is based on “findings that are contrary to the record.”  The court noted that the agency “reviewed the application with skepticism” despite the explanations,  and despite that information, “speculated” that additional assets were in the trust, leading to a situation in which “L.A. was required to produce information that simply did not exist” The Court reversed the denial, and held that “L.A. supplied all the necessary information for review of her application, and that her benefits should not have been denied because of the omission” of evidence that simply does not exist.

The Medicaid application process is a minefield with many traps for the unwary. As individuals grow older they need to always be looking to the future when they set up their financial arrangements, maintain their paperwork and handle their accounts and trusts, because things can turn on a dime and it just might become necessary to prove one’s eligibility for Medicaid. We’re here to help at every step of the way.

 

Call for advice and representation concerning Medicaid planning, applications and appeals ……. 732-382-6070

Guidebook available regarding common nursing home problems

Justice in Aging is a non-profit organization that is dedicated to fighting for the rights and interests of poor elderly people in the United States. The organization has just released a free guidebook called “25 Common Nursing Home Problems and How to Resolve them.” Click here to find out how to get this publication.

Readers of this blog are aware that skilled nursing facilities/ long-term care facilities are regulated by both federal law and state law. There are numerous protections for the residents of such facilities, but vigilance and vigorous advocacy are often required.

Senior care planning often involves looking at a variety of choices for long-term care and developing both a clinical care plan and a financial plan. The process can be distressing and difficult. Understanding the legal protections for residents and the obligations of the facilities will make you better equipped to help your loved one. Individualized legal advice coupled with publications like this one can be helpful as you navigate this process. Forewarned is forearmed.

For individualized legal advice on the elder care plan that’s right for you, call us at …. 732-382-6070

 

The Landscape has changed for Guardianship in New Jersey

Procedures for filing for Guardianship are changing in New Jersey as a result of amendments to the Court rules that were effective 9-1-2016. The Rules are at N.J.R. 4:86-1 to 4:86-10. Guardianship petitions now must be initiated using a specific set of forms that have been prepared by the Administrative Office of the Courts.  A Guardianship Monitoring Program is being established in each county. After the pleadings are filed, the petitioner must complete a mandatory guardianship training program before the court hearing date, which includes watching a certain video about the Guardian’s many duties and responsibilities.  The alleged incapacitated person must attend the hearing unless his/her court appointed attorney and the petitioner’s attorney both certify  that s/he would be unable to attend due to physical or mental incapacity. Once the Judgment is entered, the Guardian must qualify as Guardian within thirty days. The physicians’ reports must specifically delineate the areas of functional decision-making in which the individual retains capacity.

There continue to be thorny legal issues that will come up in these cases.  Whether planning the care for a senior or a young person with disabilities, The law is bending towards limited guardianship, and sometimes it isn’t patently obvious that the individual lacks capacity in all respects. If the person who seeks to become guardian cannot be bonded due to their own prior financial difficulties or lack of personal resources, there may be a need to find somebody else to serve as guardian. The petitioner may need to obtain court permission for sale of real estate, or for placement of a mortgage on the property to pay off debt or support the individual in his/her home. The petitioner may wish to get court authorization for Medicaid eligibility planning including transfer of assets to spouse or other family members. The Verified Complaint, Order for Hearing, Physicians’ Certifications and Judgment are in a format that requires careful reading and additional legal drafting, in order to be sure that everything the petitioner knows and everything the petitioner seeks can be reflected in the forms that are submitted to the County Surrogate.

Call us for advice and representation in guardianship matters …732-382-6070

What if the Medicaid home care services aren’t provided? part II

Previously I blogged about the problems faced by Medicaid-eligible people living in home and community-based settings when there isn’t a sufficient provider network to provide the services needed to maintain them in their residences, or there is substantial delay in getting the services started. The issue is that the government is obligated to provide the services in the least-restrictive setting under the Olmstead decision and the Americans with Disabilities Act (“ADA”) Now there are developments in Ohio which deal with that problem. In Ball, Burba et al. v. Kasich, Governor of Ohio, the  plaintiffs alleged that “ the failure of defendants, Ohio’s governor and several state agencies, to provide them with home- and community-based services forces plaintiffs to rely on volunteer family caregivers to remain at home and places them at serious risk of institutionalization in a large Intermediate Care Facility (“ICF”).” The State moved to dismiss, saying that being ‘at risk” doesn’t give them standing to sue. The U.S. Department of Justice has now filed a Statement of Interest, asking to intervene (i.e., participate) in the case.

The USA wrote to the Judge that “The United States files this Statement of Interest to clarify that non-institutionalized individuals with disabilities who are not currently receiving state-funded home- and community-based services may bring a claim that a public entity has placed them at risk of institutionalization or segregation in violation of the “integration mandate” of Title II of the Americans with Disabilities Act. See 28 U.S.C. § 517. “

To me, this is an exciting development. Eligible people who aren’t receiving services to which they are entitled are clearly being injured by such governmental delay. People who need 24/7 care and lack sufficient care services in their homes are clearly at risk of nursing home placement. The injury could be irreparable.

Call us for advice and assistance with Medicaid applications and advocacy for services … 732-382-6070