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IS RETROACTIVE GIFTING
PERMITTED UNDER MEDICAID RULES? Click here to save article in WinZip.exe format to your PC It has been recognized that people suffering with cognitive disabilities
should not suffer further because of their inability to take steps to
protect their assets when a person without such a disability could do so.
When applying that philosophy to Medicaid planning for long term
care, the courts have said in unmistaken terms, that a disabled person
should be on a level playing field with people who are not disabled.
Thus people who are not cognitively disabled are able, if they see
fit, to gift their assets in a manner and at a time which is protective of
those assets. Now taking that logic to its anticipated conclusion, one attorney in New York was compelled to commence a guardianship proceeding (because of the dementia of the person) and obtain approval from a court for the gifting of assets. The attorney asked the court to approve gifts of assets retroactive to a month which was earlier than the month in which the gift was going to be made. In other words, the attorney wanted to effect the gifts now but treat the gifts as if made some months earlier. The gifting of assets results in an ineligibility period for institutional Medicaid benefits. Of course, if the period of Medicaid ineligibility is begun earlier, it will end that much earlier. The argument went as follows: Had the disabled person the cognitive powers to effect gifts, those gifts would be accomplished at a much earlier date instead of having to wait while the guardianship was proceeding was running. The County Attorney was served with process in the guardianship
proceeding and the court papers specifically requested that the Court
approve the gifting retroactively. The
County Attorney did not respond in the matter.
The Order and Judgment of the Court stated that “gifts and
transfers shall be deemed retroactive to March 2002 to the extent
permitted by law...”. The local Medicaid district did not accept the notion that gifts could be made retroactively irrespective of what the Court said. The administrative law judge handling the appeal from the decision of the local district made much of the words “...to the extent permitted by law....” The administrative law judge determined that: “There is no provision in the Social Services Law or the Regulations at 18 NYCRR for a transfer of assets to be deemed retroactive.” Thus the administrative law judge upheld the decision of the local district. As far as I know the matter has not been further appealed. Notwithstanding the decision, I am not prepared to say that there are no circumstances under which gifts can be made retroactively for Medicaid purposes. For example, if the local department of social services engaged in a delaying practice in order to delay the ability to effect gifts, the court’s equitable powers (to do what is right) could be brought to bear-but that is not usual. |
