
FINANCIAL FORUM
Planning Ahead Is The Best Way To Protect Assets
By A. Frank Johns, JD, LLM, CELA Booth Harrington & Johns of NC, PLLC North Carolina’s first Elder Law Firm
Regardless of the amount of wealth, planning ahead is a must for everyone, especially older Americans. While protection is necessary to assure that those intended actually receive the legacy, the greatest worry and concern for asset protection is the skyrocketing cost of long term care. What with health care reform constantly reminding us just how expensive health care is to everyone, most reform options do not include nursing home care because of the prohibitive expense.
This topic of great worry is as fresh as today’s headlines. A recent USA/TODAY article used the following question for discussion: “Q: My father may be put into a nursing home and would like to protect his investments, including his home and $250,000 in cash and stocks. Is there a way to do this?”
In the answer, reporter Matt Krantz acknowledged how common the question is, but that it is more legal than financial. He strongly suggests that planning ahead would have allowed gifting to children and grandchildren before being diagnosed or getting sick. However, most of the people we see have already been diagnosed or are about to be placed in a nursing home.
So, the follow-up question is “But what about now?” For asset preservation that focuses on long term care, many states, like North Carolina, allow the transfer of the home place valued at $500,000 or less. Such a transfer in North Carolina must be done within complex rules so as not to trigger a sanction or penalty, but it can be done. The need for such a transfer is because of the “payback” provision of the Medicaid rules. If a home is not properly transferred and the Medicaid recipient dies, North Carolina may make a claim against the home's value.
As for other assets, consider trying to protect some assets by using a combination of annuities and gifts. Back to the example above – remembering the father is entering the nursing home and triggers the beginning of the penalty period, let's assume the cost of a nursing home is $5,000 a month and your father's monthly income is $1,000 including Social Security. With the $250,000 cash in the estate, your father might give a gift of $125,000 to a relative. That exceeds the $13,000 annual exclusion for gifts. However, your father could avoid gift tax on the $125,000 by claiming $112,000 of his $1 million lifetime gift tax exclusion, although he would need to file a 709 gift tax return with the IRS.
The $125,000 gift would make your dad ineligible for Medicaid reimbursement for 22 months, Gilfix estimates. So, with the remaining $125,000 in the estate, your father could buy a Medicaid qualifying annuity with a 22-month term so it pays $4,000 a month.
Your father would qualify for Medicaid, since there would be no assets in the estate, and the annuity would cover the cost of the nursing home for 22 months. After that penalty period has passed, your father would qualify for Medicaid and the $125,000 gift would be protected.
That's just one suggestion. If there is a spouse, consider long term care insurance, or a second to die life insurance policy to make up for the private cost of care in the nursing home.
For those with larger estates, consider using a trust as part of a broader asset protection plan. The cost of setting up a trust varies greatly, but is usually a cost benefit. There are also options of family partnerships and limited liability corporations that would assure legacies get to those intended while at the same time avoiding probate, and possibly qualifying for Medicaid. Such options may not completely protect estates when nursing home placement is involved, but the actual cost may be minimal.
Just as important is for family members to have all of their advance directives in order, including the financial powers of attorney, health care powers of attorney and living will declarations. |