Medicaid Asset Protection Trusts
When the client is turned down for long-term care insurance, or is unable to afford the premium, the next best option is the Medicaid Asset Protection Trust (MAPT). Making assets joint with adult children offers no protection since Medicaid considers all of the jointly held assets to be available for the care of the ill parent, except to the extent the child can prove the amount of their actual contribution. Additionally, outright transfers to children are generally inadvisable since those assets then become exposed to the children’s debts and liabilities, divorces, etc. In addition, some children spend the money, refuse to give it back when needed or die before the parent and pass those assets on to their heirs. One exception to the inadvisability of outright transfers to children is when nursing facility care is imminent or at least foreseeable. In such a case, the assistance of an elder law attorney is essential since the amounts to be transferred, the order of assets transferred and where to transfer the assets all require the advice of counsel. The object here would be to protect as much of the assets as possible and to qualify for Medicaid benefits at the earliest possible moment. If someone is just getting older, can’t or won’t get long-term care insurance and wants to plan ahead to protect their assets, the best option is to set up a Medicaid Asset Protection Trust (MAPT).
Known as an “income only” trust, the MAPT names someone other than you or your spouse as the trustee, usually one or more adult children, and limits you to the income. The principal must be unavailable in order for it to be protected. These trusts are ideal for the family home as well as for assets the client is only taking the income from or is simply reinvesting. The client’s lifestyle is not generally affected since they continue to receive their pension and Social Security checks directly, they keep the exclusive right to use and occupy the home and they preserve all the tax exemptions on the home. The trust may sell and trade assets through the trustee. Nevertheless, the parent retains some measure of control by reserving the right to change the trustee in the event of dissatisfaction for any reason.
The MAPT is subject to a look-back period of up to five years. This means that if assets are transferred and the client needs nursing home care any time after five years have passed, the assets in the trust are protected. Nevertheless, it always pays to get started, since you get credit for the time you accumulate, even if you don’t make
the five years. For example, if the client needs nursing home care, say, after only four years, then they would only have to pay for the one year that’s left.
The Medicaid Asset Protection Trust is also flexible. You may sell the home, the money is paid to the trust, and the trust may buy a condominium, for example, in the name of the trust so it is still protected. The trust may buy and sell and trade stocks and other assets. IRA’s and other qualified plans stay out of the trust since the principal of all such retirement plans are exempt from Medicaid. These types of assets avoid probate as they go directly to the designated beneficiaries at death.
MAPT v. Life Estate Deed
Clients often ask whether the home should be deeded to the client’s adult children while retaining a life estate in the parent or whether the Medicaid Asset Protection Trust should be used to protect the asset.
While the deed with a life estate will be less costly to the client, in most cases it offers significant disadvantages when compared to the trust. First, if the home is sold prior to the death of the Medicaid recipient, the life estate value of the home will be required to be paid towards their care. If the house is rented, the net rents are payable to the nursing facility since they belong to the life tenant. Finally, the client loses a significant portion of their capital gains tax exclusion for the sale of their primary residence as they will only be entitled to a pro rata share based on the value of the life estate to the home as a whole. All of the foregoing may lead to a situation where the family finds they must maintain a vacant home for many years. Conversely, a properly drafted MAPT preserves the full capital gains tax exclusion on the primary residence and the home may be sold by the trust without obligation to make payment of any of the principal towards the client’s care, assuming we have passed the look-back period.
It should be noted here that both the life estate and the irrevocable Medicaid trust will preserve the stepped-up basis in the property provided it is only sold after the death of the parent who was the owner or grantor. Upon the death of the parent, the basis for calculating the capital gains tax is stepped up from what the parent paid, plus any improvements, to what it was worth on the parent’s date of death. This effectively eliminates payment of capital gains taxes on the sale of appreciated property, such as the home, after the parent dies.
MAPT Do’s and Don’ts
The following is a convenient list of “Do’s and Don’ts” in managing the MAPT.
• Do make all transfers to your trust, as advised by the elder law firm, in a timely manner.
• Do use trust assets for repairs, maintenance and improvements to real property in the trust.
• Do use trust assets for payment of real estate taxes and homeowner’s insurance.
• Do take dividends and income on trust assets on at least a quarterly basis.
• Do contact the elder law firm when you wish to make a gift from the trust to any of your beneficiaries.
• Do contact the elder law firm when a grantor needs Medicaid benefits or dies.
• Do contact the elder law firm when personal or financial circumstances change significantly.
• Do contact the elder law firm if you wish to change trustees or break the trust.
• Do provide your homeowner’s insurance company with a “letter of instruction”, including a copy of the trust for real property transferred to the trust, to add the trustees as “additional insureds”
• Do provide your CPA or tax preparer with a “letter of instruction” regarding the trust tax return and a “letter of instruction” regarding tax deductibility of legal fees.
• Do choose your trustee carefully to avoid the expense (and unpleasantness) of having to change the trustee.
• Do contact the elder law firm if you want to refinance, take a reverse mortgage or equity loan on real property in the trust.
• Don’t use trust assets to pay telephone or utility bills.
• Don’t use trust assets to pay personal expenses.
• Don’t use trust assets to purchase an automobile.
• Don’t take principal or capital gains from trust assets.
• Don’t transfer IRA’s or 401(k)’s to the trust.
• Don’t allow beneficiaries to return to the trust or the grantor any gifts made from trust assets.
• Don’t make additional transfers to the trust in the future without advising the elder law firm.