52 THE QUEENS COURIER • HEALTH • MAY 3, 2018 FOR BREAKING NEWS VISIT WWW.QNS.COM
health
The Elder Law Minute TM
Proving That Transfers Of Assets Were Made
For Reasons Other Than Qualifying For Medicaid
ELDER LAW
QUALITY OF LIFE AND AGING
In almost every book or article on
aging, one idea continues to be stressed:
longevity is desirable if accompanied by a
life of high quality. But, I continue to ask,
what makes for such a good life? Most of
us want love, meaningful work, safety and
security, energy and health, and to varying
degrees, power, fame, freedom and
wealth, and we want to live in a society
that supports these goals.
How can we measure quality of life?
Th ere is no simple answer. It is an amorphous
concept, constantly changing with
the historical period and one’s culture,
personal background, stage of life, and
socioeconomic status. A person’s defi -
nition of quality of life is and should be
highly individualized and objective.
Danger lies in a sector of society
attempting to quantify, qualify or create
a cut-and-dried defi nition of what constitutes
quality of life.
Neither governments nor medical personnel
should be given the authority to
determine for an individual the point at
which quality of life is so diminished as
to make life itself undesirable or unnecessary.
For example, care must be taken when
making assumptions about how older
people perceive their lives. A popular
held view is that old people who seem no
longer able to enjoy life may not wish to
live. To an objective eye, their lives may
seem so limited as to appear pointless,
but to the individual living that life, each
remaining day, week or year is oft en precious.
Longevity itself may entail quality of life
and provide choices and opportunities
for happiness. In fact, evidence exists that
old people may prefer a longer life with
illness, to a shorter life of higher quality.
Can a higher quality of life in and of
itself extend the length of life? Having
goals, passion, positive emotions, purpose
and structure in one’s life have been
associated with longevity. Length of life
and quality of life are certainly intertwined.
Medicines and surgeries have done
much to advance life’s quality. Outpatient
cataract surgery and hip replacement are
excellent examples of that.
Perhaps the classic and simplest equivalent
of quality of life is happiness, which
is usually regarded as being a result of
one’s own doing and of one’s circumstances.
Losses and trauma can have profound
eff ects on an individual and lead to clinical
depression despite the set-point. On
the other hand, a behavioral geneticist
would propose that a steady diet of “simple
pleasures” will keep one above one’s
set-point.
One fi nal thought is how you spend
time. Time is that irreplaceable resource
that must be spent most wisely, which is
so diffi cult to achieve.
Dr. Sheldon Ornstein is a
registered professional nurse
with a doctoral degree in
nursing organization. He
has specialized in the care
of older adults and has
published many articles on
the subject. He has done
post-graduate work in gerontology
and has taught
at several universities. In
2013, he was inducted into
the Nursing Hall of Fame at
Teachers College, Columbia
University.
BY RONALD A. FATOULLAH, ESQ.
AND STACEY MESHNICK, ESQ.
Th e cost of nursing home care and
home care can be prohibitive for people
who do not have long term care insurance.
Oft en, Medicaid is the only viable
option. When applying for nursing
home Medicaid, the Medicaid agency
will review the applicant’s (and
spouse’s) fi nancial history for the fi ve
years prior to the requested beginning
date of Medicaid. If the applicant or his/
her spouse has transferred assets within
the fi ve year period, Medicaid presumes
that the transfers were made for the
purpose of qualifying for Medicaid. As
such, Medicaid imposes a period of ineligibility
(“penalty period”) based upon
those transfers, unless they were made
to a spouse or to a blind or disabled
child. Th e penalty period is determined
by dividing the amount transferred by
what Medicaid deems is the monthly
cost of care in the region in question
($12,319 for New York City). For
example, if $123,190 was transferred,
Medicaid would impose a 10 month
penalty period.
However, if an individual is applying for
nursing home Medicaid and had transferred
assets within the fi ve years for reasons
other than Medicaid planning, he or
she may rebut the presumption in order
to avoid a period of ineligibility. Th e
individual needs to prove that the transfers
were made for a reason other than to
qualify for Medicaid. Th e following evidence
can be used in the scenarios below
to prove the assertion that the transfer was
not made for Medicaid purposes:
• Th e individual (and his/her spouse,
if married) was in good health at the
time of the transfer, and made the gift
for a particular reason, not anticipating
the need for long-term care. One
example would be parents paying for a
child’s wedding. Medical documentation
would need to be provided to verify
this assertion.
• Th e individual had a pattern of gift giving.
For example, if she had a history
of helping children or grandchildren by
making annual gift s, she would need to
provide copies of checks and statements,
with explanations as to the nature of the
gift s and to whom they were made.
• Th e individual had a signifi cant amount
of other assets at the time of the transfers.
In other words, if signifi cant assets
were remaining in his name aft er the
transfers were made, it indicates that the
individual was not trying to render himself
“insolvent” so that he would be eligible
for Medicaid. He would need to
provide statements showing that he had
other assets in his name aft er he made
the gift s.
• Th e individual was in good health and
was engaging in estate planning based
upon the advice of an accountant or
estate planning attorney. In addition
to providing medical evidence, one
would need to provide the estate planning
documents and the verifi cation of
the advice that the attorney gave and the
nature and reason for that advice.
Proving that an individual and his/her
spouse made a transfer for purposes other
than qualifying for Medicaid can be quite
diffi cult. If you or your spouse did, in fact,
make gift s in the past and you now require
long term care, you should consult with
an experienced elder law attorney.
Ronald A. Fatoullah, Esq. is the principal
of Ronald Fatoullah & Associates,
a law fi rm that concentrates in elder
law, estate planning, Medicaid planning,
guardianships, estate administration,
trusts, wills, and real estate. Stacey
Meshnick, Esq. is a senior staff attorney
at the fi rm who has chaired the fi rm’s
Medicaid department for over 20 years.
Th e law fi rm can be reached at 718-
261-1700, 516-466-4422, or toll free at
1-877-ELDER-LAW or 1-877-ESTATES.
Mr. Fatoullah is also a partner with
Advice Period, a wealth management
fi rm, and he can be reached at 424-256-
7273.
RONALD FATOULLAH
ESQ, CELA*