Property Owned by Applicant Residing with Caretaker Child

Property Owned by Applicant Residing with Caretaker Child

The transfer rules do not apply to the transfer of the home to designated individuals. The materials refer to such individuals as “protected transferees.” For the purposes of the following discussion, the “protected transferee” is assumed to be a child of the individual who provided care to the individual at home.

A. The child must have (i) resided in the home for at least two years prior to institutionalization; and (ii) provided care which permitted individual to reside at home rather than go into a nursing home.

Note: The statute is silent as to the permissible time of transfer.

B. The subjective determination of whether a child has provided the requisite care is made by the County Board upon application for Medicaid. An unfavorable determination by the Board results in a denial of eligibility and a substantial period of ineligibility.

Planning Point: The request for protected transferee status should be made in conjunction with the application for Medicaid. This approach avoids the risk of a period of ineligibility. If the applicant is incompetent, seek court approval for the transfer in a guardianship proceeding and incorporate the written approval by the County Board in your papers.

Planning Point Before Medicaid Application Process: Counsel will often be presented with situation in which a child is residing with applicant in applicant’s residence and applicant-client desires Medicaid planning and does not desire to transfer the home (or counsel is of the opinion that home should be transferred as part of the Medicaid application process). Counsel should incorporate language in potential applicant’s power of attorney that allows residence to be transferred to child if appropriate for Medicaid planning purposes.

C. If protected transferee is one of several children who are equal beneficiaries under the applicant’s will, arrangements should be made by the children to avoid litigation. However, the transfer should be made solely to the child with protected status. Written approval to the transfer from the other children should be obtained if transfer is being made pursuant to a guardianship proceeding.

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.


© February 2009, Post #6