As tax preparation time begins, many seniors are asking to include Medicaid asset protection as part of their tax planning strategies. For those of you not familiar with the 2005 Tax Reduction Act, some of the provisions address specific transfers by seniors under the new Medicare nursing home provisions. Under the new provisions, before a senior qualifies for Medicare assistance into a nursing home, they must spend-down their assets. These new restriction have a 5 year look-back, used to be 3 years. And used to be that each spouse had a one-half interest in the marital property, it now appears that all the marital assets are to be spent-down. I have not seen specific regulations but it appears that the healthy spouse will be left without any assets if one of them gets sick.

Suggestions by seniors have been to transfer their assets to their children. Although this option is available, I'm not sure that it's a good option. What if the child decides to use the asset for themselves, what if they get divorced and the judge awards assets originally intended for the parents to the divorcing wife's decree, what if the child get's sued?

There are also tax implications. If the assets are transferred to the child for less than fair market value, then it's a taxable gift. Even worse, if this type of transfer to the child is completed before the 5 years-look back, -is it a "fraudulent conveyance?"

Medicaid asset protection has to be done very carefully. Planning in this area is evolving. There are a lot of eldercare law firms popping up all over the place. I have been approached by such a firm to send them clients. They claim that they can structure a new deal whereby the nursing home won't be able to attach assets even after they enter the nursing home.

I know this much, any method used to deflect assets from the original owner has to be done at it's fair market value. For example you just can't transfer your house from you to your child. There are tax consequences. Did you just sell your house? Or did you just gift your house? Who will determine the fair market value? Did you get a genuine appraisal? If therefore, it's at less than fair market value (willing buyer and willing seller, neither under compulsion to buy or sell, each acting in their best interest) did you just create a more challenging problem?

Any method whereby there's an element of strings attached, it's revocable and therefore you have done nothing to disassociate yourself from your asset. One can challenge your intent, to divert assets for the purpose of defrauding a potential creditor and failure to have filed a gift tax return has statutory penalties, and interest, worse- if Medicare intended, criminal?

I am aware of only one method of disassociating yourself from your asset (personal residence, your CD's, your investments, vacation spot) is to give it away. Period. You can gift it to your children, pay the tax and that's it. The problem is that you no longer have any control and you are at the mercy of your child's good intentions and a blessed spouse. Risky? You bet!

An irrevocable trust with an independent trustee (not related to you by blood or marriage) will fit the bill.
An irrevocable trust, is an irrevocable contract between you and the independent trustee to manage the assets for the benefit of all beneficiaries. You and your spouse can become beneficiaries along with your children and grand children.

Timing is extremely important. If the transfer (repositioning) of your valuable assets is done before the 5 years, chances are good that it will stand-up in court. What if it's before the 5 years are up? Is your Medicaid asset protection plan still good? In my book it's better to have done something than nothing.