Financing Long-Term Care In New Jersey 2019
by: Begley Law Group
Statistics show that approximately 70% of the population age 65 or over will require some form of long-term care. Some will be there for relatively short periods of time. These are usually stroke or accident victims or surgery patients who are doing rehabilitation. A significant percentage will remain in a nursing home for an extended period of time. These are usually Alzheimer’s, Parkinson’s or other Dementia patients.
A statistic widely quoted is that the average stay in a nursing home is 2.9 years. This statistic is somewhat misleading, because the persons receiving rehabilitation are often discharged in one month or less. Some long-term patients may stay in the nursing home for many years.
Unfortunately, as the population ages, the cost of health care is increasing, and government entitlement programs are being cut back. The cost of a nursing home in New Jersey today is approximately $125,000 – $160,000 per year. Some nursing homes are slightly less, and some are significantly more.
There are five sources for nursing home payment. They are: private pay, long-term care insurance, Medicaid, Medicare, and Veterans Administration.
This is a program administered by the states and funded by both federal and state governments. Rules vary from state to state. In New Jersey, Medicaid is administered by the County Welfare Boards. Medicaid pays for nursing home care for eligible individuals.
“Disability” is defined as the inability to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment, which can be expected to result in death, or which has lasted or can be expected to last for a continuous period of not less than 12 months.
♦ Medicaid Eligibility. Must also be eligible from a medical standpoint. This is done by a Medicaidnurse completing a necessary form stating the diagnosis, medication, etc.
- New Jersey is an income cap state. This means that if an individual’s income exceeds $2,313 for 2019(300% of the SSI individual benefit), the individual is not eligible for Medicaid. The solution is to establish a “Miller Trust.” By utilizing the Miller Trust, excess income is placed into the trust. Essentially, the income in the trust goes to pay for long-term care, but is not counted as income for income cap purposes. This is a legal fiction that makes no logical sense, but it works.
- All types of income are counted including wages, social security, pensions and annuities, alimony, interest and dividends.
- Name on Instrument Rule. The name on instrument rule applies in determining to whom income belongs. If there is a joint “and” account, income is deemed to belong one-half to each. If it is a joint “or” account, Medicaid takes the position that the entire account belongs to the applicant.
MINIMUM MONTHLY MAINTENANCE NEEDS ALLOWANCE
Medicaid Regulations provide for a Minimum Monthly Maintenance Needs Allowance which is composed of $2,113.75 per month adjusted annually on July 1 of each calendar year, plus the community spouse’s expenses for rent, mortgage, taxes, insurance and certain utilities in excess of $634.13 per month. These figures are for the period July 1, 2019 through June 30, 2020. The maximum MMMNA is currently $3,160.50.
♦ Excluded Resources
- Home. The primary residence and lot are excluded if occupied by the institutionalized person or the community spouse. Absence of more than six months creates a presumption that the home no longer serves as the principal residence. However, states may establish a cap on the equity of the home. The minimum cap is $585,000 and the maximum cap is $878,000.
- Automobile. One automobile is exempt.
- Personal Effects and Household Goods
- Wedding Ring and Engagement Ring
- Medical Equipment. Needed by an institutionalized person or a member of his household.
- Burial Fund. A prepaid funeral is permitted provided the funeral director places the payment in an irrevocable trust for this purpose or, provided that a life insurance policy is irrevocably assigned to the funeral director.
- Inaccessible Resources. Resources which cannot be liquidated are considered inaccessible resources.
- Term Life Insurance. Term life insurance is not countable since it has no cash value.
- Whole Life Insurance with a Maximum Face Value of $1,500
Resources owned individually by the institutionalized spouse and the community spouse or owned jointly by the institutionalized spouse and the community spouse are pooled together to determine Medicaid eligibility. However, this rule does not apply to a spouse who entered a nursing home prior to September 30, 1989. Transfers between such spouses, are permitted without resulting in any period of ineligibility.
TRANSFER OF RESOURCES
♦ Look-Back Rule. There is a 5-year look-back for transfers of assets. This means that the disposal of resources, for less than fair market value, in the 5-year period prior to the month of application must be reported at the time of the Medicaid application. Transfers made beyond the look-back period are not penalized. Transfers within the look-back period are penalized.
- Transfer Penalty. To calculate the penalty, divide the amount of the transfer by the average cost of nursing home care in New Jersey, a daily rate of $343.85, as of July 1, 2018. Under the Deficit Reduction Act, the penalty is calculated in partial months. The penalty is the period for which the institutionalized spouse would be ineligible for Medicaid. Under federal law, the penalty is unlimited.
- Beginning Date. The penalty begins on the later of the date of the transfer for less than fair market value, or the date on which the individual is eligible for medical assistance under the State Plan and would otherwise be receiving institutional-level care based on an approved application for such care but for the application of the penalty period, whichever is later and which does not occur during any other period of ineligibility. Therefore, the penalty begins when a person is actually receiving care, has reduced his or her resources to $2,000, and has no other penalty outstanding.
- Transfers by Community Spouse. Transfers by the community spouse are also subject to the same penalty as transfers by the institutionalized individual.
COMMUNITY SPOUSE RESOURCE ALLOWANCE
This guarantees the community spouse a minimum amount of resources without affecting the institutionalized spouse’s Medicaid eligibility. For 2019, this is the greater of $25,284 or one-half of the couple’s non-exempt resources not to exceed $126,420. These figures are adjusted on January 1 of each calendar year.
The determination of a couple’s resources is made at the time the institutionalized person enters the nursing home, or at the time of the Medicaid application, whichever first occurs. This determination is used to establish the Community Spouse Resource Allowance.
In doing Medicaid planning, income tax, gift tax and estate tax consequences need to be considered, including medical deductions, personal dependent exemptions, carry-over basis, and step-up in basis.
♦ Income Tax
- Medical Deduction. The IRS permits an income tax deduction for medical expenses. Medical expenses include qualified long-term care services. Qualified long-term care services are defined in the tax codeas “necessary diagnostic, preventive, therapeutic, curing, treating, mitigating and rehabilitative services, and maintenance and personal care services, which: (a) are required by a chronically-ill individual, and (b) are provided pursuant to a plan of care prescribed by licensed health care practitioner.” A chronically-ill individual is a person certified by a licensed health care provider as being unable to perform two activities of daily living for a period of at least 90 days. The activities of daily living are defined to mean “eating, toileting, transferring, bathing, dressing and continence.” The Conference Report notes “It is intended that an individual who is physically able, but has a cognitive impairment such as Alzheimer’s disease, or other form of irreversible loss of mental capacity, be treated similarly to a person who is unable to perform at least two activities of daily living.”
A taxpayer can claim an itemized deduction for unreimbursed medical expenses to the extent such expenses exceed 7-1/2% of adjusted gross income. Qualified long-term care services, insurance premiums and other eligible medical expenses may be aggregated.
Except for insulin, expenditures for medicine and drugs are deductible only if prescribed by a physician.
Capital expenditures are deductible if they are medically necessary and represent an unrecoverable sunk cost. To the extent the purchase increases the value of an asset, the expenditure is non-deductible regardless of the degree of medical need. The IRS has published a list of home modifications that are deemed not to add to a home’s value.
Personal care services are tax deductible, if provided pursuant to a plan of care prescribed by a licensed health care practitioner (i.e., physician, registered nurse, geriatric care manager). Expense must be primarily related to needed assistance with any of the disabilities for which the individual qualified as chronically ill or cognitively impaired. Examples include expenses related to a patient’s dressing, grooming and bathing, if an individual is unable to perform those functions without assistance. There is no deduction for what might be termed “maid” services. These include cooking and general cleaning.
Payments for qualified long-term care services provided by an individual do not qualify as paid-for medical care if the service is provided by the spouse of the individual or by a relative, unless the service provider is a licensed professional with respect to the service.
- Medical Deduction – Relative. Under the Federal tax codea person can claim a whole or half-blood; stepbrother, stepsister; medical deduction for medical expenses paid on behalf of a relative, if the person provided over half of the relative’s total support for the calendar year.
A relative is definedas “a child or descendant of a child; stepchild; a brother, sister, stepbrother, or stepsister; the father or mother, or an ancestor of either (grandparent, great-grandparent, etc.); a stepfather or stepmother; a nephew or niece; a brother or sister of father or mother (uncle, aunt); a brother-in-law, sister-in-law, father-in-law, mother-in-law, son-in-law, or daughter-in-law.”
The taxpayer claiming the exemption must, in combination with other taxpayers (i.e., children), provide more than half of the support of the dependent individual for the calendar year. The taxpayer claiming the dependent must have individually provided more than 10% of the individual’s support. The taxpayer must sign a Multiple Support Agreement Form 2120 if:
- The taxpayer provided less than half of the dependent’s support for the calendar year; but
- The group provided more than half of the support; and
- No one person furnished more than half of that support; and
- The taxpayer contributed more than 10% of the support; and
- Each person in the group contributed more than 10% signs a written declaration (Form 2120 can be used) that he/she won’t claim that individual as a dependent for any tax year beginning in the calendar year.
- Carryover Basis.In determining which assets to transfer and which assets to retain, consideration must be given to the fact that the donee of a gift receives a “carryover basis.” This means that the cost basis of the donee is the same as the cost basis of the donor. Therefore, when the transferred assets are sold, the donee must pay capital gains tax. The best strategy is, usually, to transfer unappreciated assets to the donee, and reserve appreciated assets for the donor. That way, any gain on the sale of the appreciated assets can be offset by deducting the cost of the nursing home from income tax.
- Step Up in Basis. Assets forming a part of the estate of a decedent are included in that person’s estate for federal estate tax purposes. The beneficiary of the estate receives a “step up” in basis with respect to those assets so that the beneficiary’s new basis is the fair market value of the assets as of the date of the death of the decedent. The strategy, therefore, is to not sell the home during your lifetime so that your children receive a step up in basis with respect to that property on your death.
- Retirement Plan. If either spouse has a retirement plan, such as an IRA or savings plan, the withdrawal of funds from that account is a taxable event. If some period of private payment to the nursing home is required, it makes sense to use the money in the retirement plan for this purpose. The medical deduction for the qualified long-term services can be used to offset the taxable income resulting from the withdrawal from the retirement plan.
- Deferred Annuity. If either spouse has a deferred annuity, the withdrawal of funds from the annuity is a partially taxable event. That portion of the payment representing the initial purchase price of the annuity is a return of principal and is non-taxable, but the accrued income is taxable. If some period of private payment in the nursing home is required, it makes sense to use the money in the annuity for this purpose. The medical deduction for the qualified long-term services can be used to offset the taxable income resulting from the withdrawal from the retirement plan.
- Interest on Series E, Series EE, and Series I Bonds. At the time Series E, EE or I bonds are redeemed, income tax is due on the accumulated interest. The same is true if the bonds are transferred to another person. Generally, it would be better not to cash in the bonds until such time as the proceeds of sale of the bonds are needed to pay for the nursing home. This is because the medical deduction for the nursing home expense will offset the taxable income from the redemption of the bonds.
- Domestic Help. Withholding of Social Security and Medicare taxes is required of all employees receiving cash wages of $2,100 or more in calendar year 2019. If the employee receives total cash wages of $1,000 or more in any calendar quarter in 2019, federal unemployment taxes must also be withheld. The first $7,000 of cash wages is subject to federal unemployment (FUTA) in 2019. After an employee reaches $7,000 during the year, the FUTA tax is no longer required. The employer is not required to withhold federal income taxes from the wages paid to household employees unless the employee so requests and the employer agrees. The employee must give the employer a completed W-4, an Employee’s Withholding Allowance Certificate. If there is an agreement for withholding for income taxes, either party may end it by written notice to the other.
If household help is obtained through an agency, the agency is generallyresponsible for paying the tax, but this must be verified with the agency.
- Gain on Sale of Home
- There is an exclusionfrom gross income for the sale of a principal residence, if the property was owned and used by the taxpayer as the taxpayer’s principal residence for two of the five years preceding the date of the sale. The amount of the gain excluded is $250,000 for a taxpayer filing individually and $500,000 for taxpayers filing jointly. In the case of married couples, the ownership requirement can be met by either spouse, but both spouses must meet the use requirement, and neither spouse has claimed the exclusion during the two-year period ending on the date of the sale. This provision is applicable to sales on or after May 7, 1997.
- Joint Returns.In the case of joint returns, the exclusion applies if either spouse meets the ownership and use requirements.
- Divorce.If a taxpayer obtains property from a spouse or a former spouse incident to a divorce, the period that the taxpayer owns the property will include the period that the spouse or former spouse owned the property. A taxpayer is treated as using the property as the taxpayer’s principal residence for any period that the taxpayer has an ownership interest in the property and the taxpayers’ spouse or former spouse is granted use of the property under a divorce or separation instrument provided that the spouse or former spouse takes the property as his or her principal residence.
- Determination of Use During Periods of Out-of-Residence Care.A taxpayer who owns property during the five-year period, but who resides in any facility, including a nursing home licensed by a state, counts the time residing in the nursing home as use of the property.
- Residences Acquired in Rollovers Under Section 1034. If a residence is acquired under a Section 1034 rollover, the time periods during which the taxpayer owned and used the former property are counted.
- Repeal of Non-Recognition of Gain on Rollover of Principal Residence. Section 1034 (relating to rollover of gain on sale of principal residence) is repealed.
♦ Gift Tax. If transfers are made in excess of $15,000 per person per year, then a Gift Tax Return will have to be filed by April 15th of the calendar year following the date of the gift. There is an annual exclusion for gifts of $15,000 per person per year or less. If a spouse consents, the annual exclusion gift may be increased to $30,000 per person per year. In addition, there is a gift tax exemption of $11,400,000 for an individual and $22,800,000 for a married couple,so no tax will be due for gifts which do not exceed the amount of this gift tax exemption. There is no tax due from the recipient of the gift. The $15,000 annual exclusion gift will be indexed for inflation in the future.
New Jersey does not have a gift tax. However, New Jersey does have an inheritance tax for assets which are left to persons other than a spouse or lineal ascendants and descendants. If a transfer is made to someone other than a spouse or lineal ascendants and descendants within three years of the date of death, this constitutes a transfer which falls within the scope of the New Jersey Inheritance Tax. In that situation an Inheritance Tax Return must be filed and the appropriate tax paid.
USE OF TRUSTS AND GENERAL POWERS OF ATTORNEY IN PLANNING FOR MEDICAID ELIGIBILITY
♦ Advantages of Using a Trust Over Outright Gifts to Other Individuals
- The trust allows the grantor to direct, in advance, how the transfer of property is to be managed administered and distributed thereby allowing some control.
- Risk Avoidance. By transferring assets to trusts as opposed to outright to children, the risk of a child’s creditors attaching the transferred assets or having the assets become involved in a divorce are eliminated. The child would not have declare the transferred assets on a financial aid application, if they are held by a trust.
- Tax Benefits. Qualification of the trust as a grantor trust allows the grantor to be taxed on the income earned by the trust at the grantor’s marginal income tax rate even if the income is not distributed to the Grantor.
- Step-Up in Basis. If the trust assets are included in the grantor’s estate, the trust principal will be included in the grantor’s estate at death and will receive a step-up in basis at that time.
- Exclusion from Capital Gains on Sale of Principal Residence. The $250,000 – $500,000 exclusion from capital gain on the sale of a principal residence can be preserved through a properly-structured trust.
♦ Trust Buster Statute. The statute provides “Any provision in a contract of insurance, will, trust agreement or other instrument which reduces or excludes coverage or payment for goods and services to an individual because of that individual’s eligibility for or receipt of Medicaid benefits shall be null and void, and no payment shall be made under this act as a result of such provision.” This statute has never been tested in court. This statute appears only to apply to instruments which provide for mandatorydistributions which are then cut back when the individual applies for Medicaid. Example: “Upon the beneficiary applying for Medicaid, all income payments to him shall terminate.”
MEDICAID TRANSFERS BY POWER OF ATTORNEY
It is necessary to explore the capacity of the client to make transfers. If the client lacks the necessary mental capacity, the transfers may, nevertheless, be accomplished through a Power of Attorney, if the document so authorizes. Under New Jersey law gifts are not permitted by an attorney-in-fact except to the extent that the Power of Attorney expressly and specifically so authorizes.
The next problem with a Power of Attorney is whether the agent has authority to make gifts to himself. The agent is a fiduciary. If the Principal wants the agent to be able to self-deal when making transfers for Medicaid purposes, the Power of Attorney should explicitly authorize such gifts. However, authorization of an agent to make gifts to himself under a Power of Attorney, might be considered a general power of appointment. The power of appointment would then cause the assets of the principal to be includable in the agent’s gross estate for federal estate tax purposes. One solution would be to have the Power of Attorney name a special agent with authority to make transfers to the regular agent. An alternative might be through obtaining court approval. A third way might be to put conditions in the Power of Attorney as to when the agent might have the right to self-deal.
MEDICAID PLANNING BY GUARDIAN
Guardians are authorized to make transfers for the purpose of obtaining Medicaid eligibility. In the case of In the Matter of Mildred Keri,the Supreme Court held that a guardian may make transfers for purposes of obtaining Medicaid eligibility for a ward. The Court imposed a five-point test:
- The spend down plan must not interrupt or diminish an incapacitated person’s care.
- The plan involves transfers to natural objects of the person’s bounty.
- The plan does not contravene an expressed prior intent or interest.
- The plan clearly provides for the best interests of the incapacitated person.
- The plan satisfies the law’s goal to effectuate decisions an incapacitated person would make if he or she were able to act.
It is wise to consider making transfers, which are consistent with the estate planning goals of the client. If inconsistent transfers are made, they may result in litigation from beneficiaries of the estate who consider themselves to be treated unfairly.
♦ The Home
- Transfer home to Community Spouse
- Transfer home and reserve right to use and occupy
- Family reverse mortgage
- Transfer home to Grantor Trust
- Sale of remainder interest in home
♦ Spend Down
- Pay off debts
- Pay for services
- Prepay real estate taxes
♦ Convert Countable Assets to Non-Countable Assets
- Buy household goods or personal effects
- Make home improvements
- Purchase life estate from Children
- Prepaid funeral
- Buy more expensive home
- Purchase Annuity?
♦ Transfer of Assets
- Large transfer of assets
- Care Agreement
- Income Only Trust
- Children’s Trust
- Disability Annuity Trust
- Disability Annuity Special Needs Trust
♦ Hardship Waiver
LONG-TERM CARE INSURANCE
Long-term care insurance can be helpful to clients who are healthy enough and affluent enough to afford it. As Elder Law attorneys, we must all be aware that Medicaid and other public assistance programs may not continue to exist in the future as we know them today. It would be a disservice to our clients to advise them to rely on these programs in the future. Clients who can afford long-term care insurance and who may be insurable, should be urged to consider purchasing the insurance. Premiums for nursing home insurance can be controlled to a certain extent by the client. The features which affect the premium cost, which can be selected by the client, are the maximum daily benefit, the elimination period, the benefit length, the inflation rider and the amount of home care covered. There are two factors that the client cannot control, which greatly affect the premium. These are the client’s age at application and health history. For this reason, clients should purchase long-term care insurance at the earliest possible time. Most experts consider that the best time to purchase long-term care insurance is about age fifty.
- Lack of Awareness. The industry has not done a good job in marketing this product.
- Seventy-seven percent of people surveyed by the American Council of Life Insurance believed they would be healthy in retirement.
- It is estimated that only 10% to 20% of the elderly can affordsuch insurance.
- Many people wait until they have a diagnosis before applying for long-term care insurance. At that point, they are no longer insurable. Agents estimate that approximately 25% of persons applying are rejected for health reasons.
Medicare will pay for nursing home care provided two requirements are met:
- The patient must spend three days in the hospital and must be admitted to a nursing home within 30 days after discharge from the hospital.
- Skilled Care. The patient must be admitted to the nursing home for skilled care on a daily basis. Skilled care is defined as services that are so inherently complex that they can only be provided effectively by skilled individuals or under the supervisor of skilled personnel.
Medicare will pay for up to 100 days. However, there is co-insurance from the 21stto 100thday. For 2019, the co-insurance rate is $170.50 per day,which must be paid by either the patient or a Medi-gap policy. The 100 days of coverage are not guaranteed. This is a maximum, not a minimum. If the patient is receiving rehabilitation and hits a plateau, Medicare will be stopped.
A Veteran with a service-connected disability of 70% or more is entitled to free lifetime nursing coverage regardless of means. Veterans who do not have a service-connected disability are means-tested as to payment. The VA does contract with public and private nursing home facilities, in addition to using VA facilities.
♦ General. New Jersey Veterans Administration operates three Old Soldiers’ Homes for New Jersey Veterans and their families. They are located in Paramus, Edison and Vineland. Veterans, spouses of Veterans, surviving spouses, and certain parents may be eligible.
♦ Fee. The AdjutantGeneral determines an “Established Rate” each year. The individual pays a portion of the cost of care based on their monthlyincome and ability to pay. The VA monthly nursing home fee is 80% of the resident’s net income, not to exceed the Established Rate. In addition, 12% of the remaining 20% of the resident’s net income (maximum $20 per month) is set aside in a Welfare fund at the institution, and the remaining balance is placed in a personal needs account for the resident. Net income is calculated after the deductions discussed below. Income includes all income except for service-connected disability compensation. If a resident sells his home and a portion or all of the proceeds from the sale are not reinvested in a primary residence, any income earned from the investment of any or all of the proceeds will be counted as income.
Certain deductions are permitted to the community spouse. For example, the community spouse receives a flat $700 exemption for food, transportation, clothing, telephone and home maintenance. In addition, deductions requiring verification are permitted for rent, first mortgage payments, real estate taxes and insurance, heat and electric, water and sewer, life insurance for burial accounts, and other extraordinary expenses.
♦ Guardianship or Advance Directive. A Guardianship or Advance Directive is required for admission.
Financing nursing home care in New Jersey is a complex enterprise. The rules change quickly and are not always written. Medicaid case workers often feel they have an obligation to protect the public purse, rather than to assist the applicant by suggesting various strategies. Case workers are sometimes poorly trained and do not know various planning techniques. Planning for Medicaid financing of nursing home care offers an excellent opportunity for elder law attorneys to be of assistance to their clients.