Elder Law Center

One Essex Street

Saugus, Massachusetts 01906

Telephone 781.233.4444   Fax 781.231.2222

August 28, 2003 Saugus Advertiser

ELDERS LOSE HOME PROTECTION

 As part of the recent budget woes the axe has fallen again on the elders of Massachusetts. The legislature has recently passed “Outside Section 329” (also know as the expanded estate recovery law), which allows the Commonwealth to lien homes which had been protected under the prior rules.

 Outside Section 329 says, “estate shall mean any interest in real and personal property and other assets in which the individual immediately prior to death had any legal title or interest, to the extent of such interest. This includes interests in real and personal property and other assets that would pass to a survivor, heir, or assignee of the decedent through joint tenancy, tenancy by the entirety, life estate, living trust, right of survivorship, beneficiary designation, or other arrangement.”

 Nursing home residents who were receiving MassHealth (Medicaid) benefits and died prior to July 31, 2003 are under the old rules. That is,  husbands and wives who owned their home as joint tenants or had life estates were protected. The Commonwealth could only lien against the deceased’s probate estate. The probate estate is made up of assets held in the deceased’s name alone.

 Under the new rules the surviving joint owner must report to the Division of Medical Assistance an accounting of “property held in joint tenancy, tenancy by the entireties, life estates, living trusts, rights of survivorship, beneficiary designation or other arrangements”. Once DMA is notified of these assets they will issue a written notice of claim which in certain instances could be deferred, but not eliminated, IF the family responds with 60 days of receiving the claim.

 This puts an onerous burden on family members who may be elderly, cognitively impaired or dealing with painful transitions due to the death of the member. Spouses and family members may be personally liable to DMA if he or she sells or transfers the asset.

 The notices that DMA will record at the registry of deeds will have the effect of making it difficult or impossible for a spouse to sell her home or re-mortgage it without paying DMA the amount of the claim. If the spouse wants to move to an assisted living facility she may lose the equity in her home and if the home needs major repairs or modifications she will be unable to secure a loan to do so because of DMA’s claim. Life insurance will also be affected because prior to paying any claims they will have to notify DMA of the death and await a determination as to whether the deceased was a MassHealth member against whom DMA will seek recovery. This will result in a delay, reduction or elimination of payments for funds that are normally used to pay funeral bills.

 Senator Morrissey and Representative Ayers have filed legislation that would repeal Outside Section 329 and I urge all of you to contact your senators and representatives to support this repeal. In Saugus, your legislators are:

 Senator Thomas M. McGee                     (617)722-2575

Senator Jarrett T. Barios                          (617)722-1650

Representative Mark V. Falzone              (617)722-2575

Representative Kathi Ann Reinstein        (617)722-2430

 Next week read about the changes that cut in half the amount of money a family can keep when one needs long term care.

 Ronald H. Surabian is a CPA and attorney who works at the Elder Law Center in Saugus, Ma. He also holds a masters in accounting and a masters in tax law. He currently serves on the board of directors of the Massachusetts Chapter of the National Academy of Elder Law Attorneys.

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