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I have an issue to do with elder law and estate. Florida,

Customer Question
Hello, I have an...

Hello, I have an issue to do with elder law and estate.

Lawyer's Assistant: Since estate law varies from place to place, can you tell me what state this is in?

Florida

Lawyer's Assistant: What documents or supporting evidence do you have?

There is a condo in the name of an elderly parent and a son, with Property Appraiser information in support of that. The elderly person has a Will, a durable Power of Attorney, Living Will and Health Care Surrogate executed.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

The issue concerns handling the condo in such as way as not to impinge upon the access to Medicaid of the elderly parent. The intent of the parent is to leave the condo fully to her son and it is "co owned" so that upon her passing, by simply death certificate, the ownership would be soley to the son who is currently co-owner. At the moment, the son rents out the condo but wishes to sell it. a) Would the sale of the co-owned condo, in any way, jeopardize the criteria for access to Medicaid benefits of the elderly parent i.e. the proceeds of the sale may be imputed to her benefit? b) If so, what steps, if any, can occur to prevent risking her Medicaid benefits (e.g. Deed of gift of her ownership share to son? Affidavit that here "co owned" share is a fraction of 1%?...)

Submitted: 4 months ago.Category: Estate Law
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Customer reply replied 4 months ago
This is an issue that requires knowledge of applicable "elder law" pertaining to Medicaid, as well as Florida estate law and real estate. Thanks.
Answered in 2 days by:
12/7/2017
Estate Lawyer: Attorney2, Attorney replied 4 months ago
Attorney2
Attorney2, Attorney
Category: Estate Law
Satisfied Customers: 8,307
Experience: 30 Years in General Practice and Estate Planning
Verified

Welcome and thank you for your question. The rules get a little complicated. She would not want to transfer her interest in the house directly to her son as that could be viewed as a fraudulent transfer. The son could purchase her share of the Condo for fair market value.

Lat me provide information on the "Medicaid Look Back Period" and assets.

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Estate Lawyer: Attorney2, Attorney replied 4 months ago

"Medicaid Income Eligibility

In Florida, Medicaid income eligibility includes the following requirements

  • Medicaid applicant’s own monthly income cannot exceed $2,200 (2017) There is no limit on Medicaid applicant’s well spouse (“Community Spouse”).
  • Married Medicaid applicant is allowed to credit some portion of monthly income above $2,200 the to support a well spouse if spouse’s monthly income is less than approximately $2,000.
  • Any excess Applicant income after allowance for community spouse support must be paid to the assisted living facility or used to fund a Medicaid Trust established by the applicant. Trust income used to support Medicaid recipient during his lifetime.

Medicaid Asset Eligibility

Proper estate planning can reduce assets to more easily meet Medicaid asset limits. In Florida, Medicaid programs place limits on the assets that an applicant can have:

  • Medicaid applicant cannot own more than $2,000 of assets in addition to any assets that are not counted because the law considers them either exempt or not available.
  • A married Medicaid applicant’s Community Spouse may not retain more than approximately $121,000 of assets.
  • Definition of “assets” includes all assets titled in applicant’s name or jointly with another person.
  • Excess assets must be liquidated and the proceeds used to pay for long-term care.

Medicaid Exempt Assets

The following assets are exempt from the Medicaid program asset limits and do not need to be liquidated:

  • Homestead: a Florida homestead is exempt up to $560,000 of equity. There is no equity ceiling if the home is occupied by the recipient’s spouse or a minor child.
  • Motor vehicle: Medicaid exempts one vehicle regardless of age, type, or value. Medicaid exempts a second vehicle over 7 years old, except luxury or antique vehicles.
  • Personal property: the recipient’s personal property is exempt except for particularly valuable items of jewelry, art, or collectibles.
  • Burial plans: recipient may exempt irrevocable burial contract regardless of amount, and he may exempt an additional $2,500 held in reserve for funeral and burial expenses. Recipient may also exempt same amounts for burial plan and expense reserve for community spouse.
  • Life insurance: cash value not to exceed $2,500 in life insurance policies owned by recipient and spouse are exempt from Medicaid.
  • Retirement plans: IRAs, 401k plans and other tax-deferred retirement investment are considered exempt if the applicant is not taking withdrawals.
  • Income producing investment assets: income producing real estate is exempt if it is generating net income and the income is being used to help support the Medicaid recipient. Income is counted in income eligibility test.
  • Annuities: annuities are not exempt unless the applicant or community spouse is receiving monthly annuity withdrawals in an acutarially sound basis. The annuity contract also must meet Medicaid guidelines. If annuity is not being annuitized and generating income then it is not an exempt asset.

Transferred Assets

A Medicaid applicant may properly plan for Medicaid eligibility by transferring assets to family members or trusts. If, however, transfers were intended primarily to achieve Medicaid eligibility will be disallowed, and the transferred assets will affect Medicaid eligibility and benefits. Transfers of assets within five years of a Medicaid application (“look-back period”) will be presumed to have been intended primarily for achieve Medicaid eligibility. Transfers during the five-year look back period will result in reduced Medicaid benefits." https://www.alperlaw.com/florida-medicaid-options/florida-medicaid-law/

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Estate Lawyer: Attorney2, Attorney replied 4 months ago

Where in Florida is elderly person located so I can provide a link for local Elder Law Attorneys in that area that provide FREE consultations that can assist her?

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Estate Lawyer: Attorney2, Attorney replied 4 months ago

Please do not hesitate to ask me any additional questions that you may have with regard to this matter. It would be my pleasure to continue to assist you.

If you would be kind enough to rate my service positively so I will receive credit for my work from the site I would appreciate it. A positive rating will not impact your ability to obtain a refund.

You may not be familiar with how the site works. The Attorneys to not receive credit from the site for their time or with customers unless the customer provides a positive rating. We answer your questions in good faith, hoping for a good faith response regardless of whether the law is in your favor or not. If you were unhappy with my service please let me know that you would prefer to work with another Attorney and I will opt out.

Can you see the rating scale on your end, 5 stars?

Thank you for your consideration.

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Customer reply replied 4 months ago
Thanks. I'm somewhat confused at this juncture of Real Estate Law and Elder Law. The vehicle used by my late father to pass a condo onto me, his son, while allowing his wife to continue using it for as long as she lived as the Joint Tenancy with Right of Suvivorship. I understood that it meant that, when the son was the only remaining survivor, he would be the sole owner.However, the wife/mother is Alzheimic and, in effect, cannot live anywhere alone, far less in a condo. She has exhausted her savings and I and my siblings are paying for her ALF.Is there no way for the father's wishes for the condo to pass to the son without incurring a income-producing or tax event "transaction"?Just holding onto the condo while the mother lives in an ALF makes little financial sense, since it means renting the place out to cover property tax, insurance, maintenance fees, property upkeep and property managment - an endeavor that has not yielded any profit but, in fact, cost the son funds due to periods of vacancy and large costs of deferred maintenance.Perhaps, this is going to need not just an Elder Law advisor but a Florida CFPlanner.So complicated.Thanks.
Customer reply replied 4 months ago
This is in Miami, FL.
Estate Lawyer: Attorney2, Attorney replied 4 months ago
I can provide a link for an estate planning Attorney in the area that provides FREE consultations if that would help?
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Estate Lawyer: Attorney2, Attorney replied 4 months ago

http://lawyers.findlaw.com/lawyer/firm/estate-planning/miami-dade-county/florida

Thank you for using JA!

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Estate Lawyer: Attorney2, Attorney replied 4 months ago

Do you have any additional questions for me?

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