Last-Minute Medicaid Planning in Massachusetts
Even After a Nursing Home Stay Has Begun, Some Asset Protection Planning Can Still Be Done Lookback and Disqualification Periods.
Many persons, including some who are rendering advice about Medicaid law, seem to misunderstand the Medicaid lookback period. The lookback period is not the same as the disqualification period. When a Medicaid application is filed, the state Medicaid agency looks back five (5) years at all gifts. Based on whatever the state Medicaid agency finds in the lookback period, a disqualification period can be imposed.
A thorough understanding of the interaction between the lookback and disqualification periods is needed before deciding whether a gift can be made, or whether the filing of a Medicaid application should be delayed.
Last-Minute MassHealth (i.e., Medicaid) Planning for Married Couples
The community spouse (A) can keep all assets automatically in some cases; (B) can spenddown excess assets in some cases; and (C) can keep all assets in many other cases through a fair hearing process. All protected assets must be transferred into the community spouse’s name, and the 5-year lookback period does not apply to this allowable transfer of assets.
When all else is determined by an elder law attorney as potentially unsuccessful, the community spouse can purchase an immediate annuity, which is essentially like buying a short-term pension. There is no current regulation requiring that the annuity extend for the community spouse’s life expectancy or that the institutionalized spouse be the post-death beneficiary.
To allow extra items to be bought for the institutionalized spouse without causing the loss of MassHealth benefits that an outright inheritance would cause, after the gifts are made to the community spouse, the community spouse should often execute a will containing a testamentary trust for the institutionalized spouse’s benefit.
Last-Minute MassHealth (i.e., Medicaid) Planning for an Unmarried Person
Long-term care insurance protects the home from a MassHealth estate recovery claim for long-term care (but not community care) benefits if questions on the application are answered correctly.
For a person whose realistic life expectancy is far less than average, an immediate annuity may, even under the restrictive 2006 Medicaid laws, be a way to minimize nursing home payments and preserve funds for the eventual post-death beneficiary of the annuity.