LEGISLATION TO MAKE SURE A GIFT IS JUST A GIFT

GiftDo you remember those Hanukah and Christmas gifts you just made to your children and grandchildren?  As I told you a few weeks ago,  if you need to qualify for MassHealth within the   next five years, you would have to report all of them and then convince a MassHealth caseworker that you did not make the gifts for the purpose of helping you qualify for MassHealth.  No gift is too small to avoid scrutiny if the caseworker who reviews your cases happens to feel like a stickler.  In one case I found myself having to explain a client’s expenditure to purchase U.S. Savings Bonds for a grandchild at Christmas.

As I mentioned in that column, a bill that is currently pending before the Massachusetts legislature would go a long way toward resolving these problems.  The bill, H-1021, would   basically create a presumption that a  prior gift made by a MsssHealth applicant was not made in order to qualify for MassHealth and, therefore, did not create a period of MassHealth ineligibility.  The bill covers five situations that cause the most concern:

1) Where there is documentation that there was a regular pattern of small gifts to that individual over a period of at least three years.  This will deal with your holiday gifts, birthday presents and all of the standard giving you do;

2) Where the gifts were made to a church or to a charity in an appropriate amount. Once again, the law would clarify the obvious, that your donations to your church or synagogue, the local Boys Club, or the most recent hospital capital campaign were not part of some nefarious scheme to qualify for MassHealth;

3) Where the assets of the giver and the giver’s spouse were below the allowable asset limit at the time the gift was made.  This, too, would seem obvious.  You didn’t make a gift in order to qualify for MassHealth if, at the time, you would have qualified anyway;

4) Where the gift was made in order to help a relative deal with a foreclosure or other financial emergency; and

5) Where there is medical documentation showing that, at the time of the gift, the giver did not have a health problem that would have warranted concern about qualifying for MassHealth.  This one is, for me, the most important.  If you make gifts to your children or others while you are still healthy, you and your family should not be punished for making the gifts if you then have a stroke or other serious medical condition and need MassHealth.

H-1021 will die in the legislature if it is not passed by the end of 2014. In the coming months, I will be reporting on its progress.  I will also be asking the bill’s sponsors to appear on an episode of my cable show, Bergeron Briefs, which I record in a number of communities and upload to my YouTube channel.  If you are interested in seeing any of these 15 to 30 minute snapshots of elder issues, visit my YouTube channel, “ElderLawFrankandMary”.  The channel also includes uploads of more than 50 live seminars on elder law topics that I have done at various senior centers over a period of years.Duck

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About Arthur Bergeron

Art has been practicing law in Massachusetts for over 30 years. He focuses his practice on elder law, estate planning, probate and trust administration, and land use matters. Art counsels senior citizens and their loved ones regarding elder law and special needs planning, asset protection and Medicaid planning. He works with individuals in all areas of estate planning, including wills, trusts, durable powers of attorney, health care proxies and living wills.
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