For Medi-Cal qualification for married couples, generally speaking, the ill spouse can only keep $2,000 in liquid assets, plus exempt assets such as the home and IRAs. In addition, the well spouse, also known as the community or at home spouse, can keep up to $113,640 in liquid assets, plus exempt assets. Any assets above these limits, $2,000 for the ill spouse and $113,640 for the well spouse, and excluding exemptions, will be counted for Medi-Cal qualification.
For planning purposes for a married couple, the Medi-Cal regulations allow us to “transmute” or transfer any assets from the ill spouse to the well spouse. There is no penalty for doing this, and no “look back” penalty period is calculated when the transfer is made between spouses. If the well spouse cannot live on the $113,640 plus exempt assets, we can either petition the court or request an administrative hearing to raise that amount, under the impoverished spouse statutes. In addition, we can make gifting transfers to other family members to lower the $113,640.
We can protect the home from a Medi-Cal lien by “transmuting” or transferring title of the home from the ill spouse to the well spouse. This title transfer must be done correctly on the record, and capital gains and other penalties and issues must be taken into account.
These regulations which allow for transfers between spouses for asset protection and Medi-Cal qualification, cannot be implemented however, unless the ill spouse has sufficient mental capacity to make the transfers. If the ill spouse has sufficient mental capacity, she can sign the necessary documents. If she lacks sufficient mental capacity, we must look to her estate planning documents, including the trust and financial durable powers of attorney for the powers.
The estate planning documents must have sufficient expanded fiduciary powers under “gifting” and “revocation” sections in order to make these transfers. Please be advised that most estate planning documents do not have sufficient expanded fiduciary powers, unless an elder law attorney has prepared the documents or has amended the documents. If no such powers exist in the documents, we can go to court on a petition to request that the documents be amended to include these powers.
The best advice is to update your estate planning documents with the recognized asset protection and government benefits planning language while mental capacities are intact.
Written Michael J. Young, elder law attorney and probate attorney in Walnut Creek, CA and former in-house counsel for title insurance companies. www.WalnutCreekElderLaw.com LawYoung1@Gmail.com 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc. Mr. Young advises clients regarding Probates, Probates with Real Estate, Medi-Cal, nursing homes, asset protection, the VA Aid and attendance pension benefit, and long term care planning. Mr. Young is an Elder Law Attorney and Probate Attorney with offices in Walnut Creek, CA. Walnut Creek Elder Law Attorney, Walnut Creek Probate Attorney