|
Elder Law Center One Essex Street Saugus, Massachusetts 01906 Telephone 781.233.4444 Fax 781.231.2222
|
|
|
Saugus Advertiser January 15, 2004
LEGISLATIVE UPDATE
We are now in the first weeks of 2004 and our Legislature is NOW voting on whether they should give back to the elders of Massachusetts the right to protect their home, if they need nursing home care. Don’t be part of the silent majority. Call your legislators and tell them, “I want you to support the override of the Governor’s veto of Outside Section 110 of the Fiscal Year 2004 Supplemental Budget!!!!!” Outside Section 110 delays the implementation of Outside Sections 329 of the FY04 Budget which expanded the authority of the Division of Medical Assistance (DMA) to recover the cost of a recipient’s medical care. Prior to July 1, 2003, DMA could only make claims against the probate estate of a deceased recipient. The probate estate of an individual consists of property that was in that person’s name alone. Joint property, life estates and life insurance are not probate assets and had always passed free of probate and free of claims of DMA. The new provisions allow DMA to make claims against all property in which the deceased had an ownership interest immediately prior to death. This includes property passing by survivorship that was held in joint names or in a life estate arrangement. Most married couples own their home in joint names and under the new law, DMA can file a claim against the home of a surviving spouse making it impossible for the spouse to sell or mortgage the property without addressing the claim. The expanded estate recovery provisions have a devastating effect on spouses of nursing home residents who are often women on limited income who are suddenly faced with threats to their home ownership. These provisions also unduly burden elders who signed deeds under one set of estate recovery laws and are now having those ownership arrangements threatened by new estate recovery laws that apply to deeds signed long before. Any attempts to expand estate recovery should only apply to property interests created after the date of the new laws. Lastly, the expanded estate recovery provisions attack the sanctity of a family home in Massachusetts which until now has been protected in most cases under Massachusetts law. 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 within 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. In short, the legislature needs time to review these issues and draft appropriate legislation to balance competing interests after ample time for public comment. Overriding the Governor’s veto of Outside Section 110 of the FY 2004 Supplemental Budget will delay enactment of expanded estate recovery until July 1, 2004. This will give the legislature time to rewrite this legislation in a way that will not unduly threaten the family home, particularly the home of a spouse of a nursing home resident. Don’t be shy, call your state legislators today! This article gives general information and not specific advice on individual matters. Persons wanting individualized advice on matters discussed should contact an advisor experienced in those matters. To the extent this article provides information on legal matters, it is based on law in effect in Massachusetts on the date of posting (laws in effect in other states are often quite different). 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.
|
|
This web site may be considered "advertising" under Massachusetts Supreme Judicial Court Rule 3:07. The information presented on these pages does not constitute legal advice. An attorney client relationship can only be established after personally meeting with each other. After consideration of all the facts in your case during a personal meeting, and payment and acceptance of a retainer, will an attorney client relationship begin. Likewise, electronic mail to Elder Law Center through this site cannot be guaranteed to be confidential and does not create an attorney-client relationship.
|