FIGHTING FOR THE VOICELESS ELDER

By Alex Moschella, Esq.

Recently I represented an elder at a Fair Hearing to determine whether gifts to her children were disqualifying transfers for Medicaid (MassHealth) benefits eligibility. This was a complex and intense case in which I argued vehemently that the gifts were NOT disqualifying because her intent was NOT to divest herself of assets for the purpose of obtaining eligibility. This case is very typical, and it illustrates many troubling questions about these hearings, namely:

1. Are our elders’ voices being heard at these hearings?
2. Who is deciding what the elder’s intent was at the time of the gift?
3. What evidence must be presented to prove the intent was not to qualify for benefits?
4. What are the rules and legal principles that should be applied?
5. What are the flaws in the way the system resolves such important issues?
6. What happens if the gifted money is now gone – who should pay?
7. Who is right or wrong on a legal, moral or public policy basis?

The answers to these questions are as murky as the interpretation of the law. The law states that the burden to prove that a gift was made for a purpose other than to qualify for benefits lies with the person denied benefits, and that seems fair enough. The law requires that substantial evidence be presented to an independent hearing officer, which also seems just. The law is clear that if it is proven that the gift was not made in order to qualify for benefits, then the benefits will not be denied.

In reality the voice of the elder often goes unheard for numerous reasons.

• The evidence or testimony is often presented by those who have benefitted by the gift, so their testimony is discounted.
• The elder may no longer have the capacity to testify.
• The hearing officers are influenced by subjective factors and do not exercise independent judgment.
• The search for truth and credible testimony is rushed and harried.
• Moral judgments are made by those detached from everyday life.
• A presumption exists that all elders transfer funds to divest themselves of assets that should and must be used to pay the nursing home.
• Greedy children are suspected to be the culprits.  Nursing home attorneys consider all such transfers to be “fraudulent transfers” and are eager to sue children if the gifted money is now gone. We defend such lawsuits and file hardship waivers in these cases.

Our goal is to level the playing field for the voiceless elders so their story may be heard. You worked your whole life and always paid your way and your bills on time.   You made these gifts for honest, legitimate reasons – NOT to get a free ride from the state. Why are your kids being sued and why would anyone think you are lying about your gifting intent?

In the end we are the voice of the voiceless, fighting the good fight to interpret rules and regulations that are enforced unfairly by an entrenched bureaucracy. We are your elder law attorney, your legal advisor for life.

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Alex L. Moschella is a partner at Moschella & Winston, LLP. He is a past president of the Massachusetts Chapter of the National Academy of Elder Law Attorneys, a Certified Elder Law Attorney (CELA), and an adjunct faculty member of Suffolk University Law School for 15 years. Please contact him at am@moschellawinston.com or (617) 776-3300.

When is a gift not a gift?

By Alex Moschella, Esq.

Elders beware: that money you just transferred could disqualify you for Medicaid (Masshealth) for the next five years!  As an elder law attorney, I often see cases where elders transfer assets, like money or a house, without realizing the consequences.  It’s an easy trap to fall into, and this has always troubled me. 

 All too often, elders do “something” with their money without any contemplation of nursing home care in the foreseeable future.  Years later, a disaster strikes and nursing home care is required before the five-year look-back period has ended.  When this happens, MassHealth benefits can be denied, and the impact on your family can be substantial. 

 Gifts towards grandchildren’s tuition, weddings, down payments on children’s homes, and other benevolent acts can throw a major wrench in your long-term care plans.  Although your goal in gifting the money clearly was not an attempt to qualify for MassHealth, the transfer can disqualify you just the same.  In theory, the state and federal regulations support the position that if the intent of a transfer is for a purpose “other than to qualify” for MassHealth benefits, then eligibility should not be adversely impacted.  The reality is they are always viewed as disqualifying transfers. 

What makes the problem so prevalent is MassHealth’s analysis of any check payable to the spouse of applicant for over $1,000.  Unfortunately, the “rebuttable” presumption in these types of transfers is that the gift was made in order to qualify for benefits.  Unless you can prove the transfers were for fair market value, OR, the gifts were made exclusively for a purpose other than to qualify for MassHealth, you will not qualify for MassHealth benefits until the look-back period has ended.

The application of the rule seems one-sided and a no win situation – but is it?  The burden to overcome this “presumption,” is substantial in evidentiary hearings, but in certain situations effective legal advocacy can help.

 For instance, I am faced with a situation now where an elder cashed out a $15K CD four years ago, and now his wife is in a nursing home.  Her only MassHealth eligibility issue is this “CD problem.”  A bank check was issued payable to the elder, but there is no record of where the money went.  Naturally, MassHealth assumes it was a gift, and this gift may disqualify the wife from receiving benefits.  The elder has some memory issues from aging, cannot recall what happened to the money, and is overwhelmed by the turn of events in his life. 

 So was this a gift?  If so, maybe it was a gift to himself, which MassHealth would allow.  Our solution for this family requires finding a record of the missing funds, submitting the evidence, and fighting aggressively to give them this much needed benefit.   Proving that a check payable to the applicant or the spouse is NOT a gift is a situation I see all the time, and often it is heartbreaking to witness the effect on elders and their families.  An elder law attorney can help you avoid this pitfall by proactively planning for your long-term care and advocating MassHealth’s regulations on your behalf.

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Alex L. Moschella is a partner at Moschella & Winston, LLP.  He is a past president of the Massachusetts Chapter of the National Academy of Elder Law Attorneys, a Certified Elder Law Attorney (CELA), and an adjunct faculty member of Suffolk University Law School for 15 years.  Please contact him at am@moschellawinston.com or (617) 776-3300.