Legacy Planning Law Group
Weekly Blog

Estate & Elder Law

Protect Your Family. Preserve Your Legacy

If you’re interested in learning more about our process and the solution for you and your family, please book your free 15-minute call with us today!

personal services contracts

Personal Services Contracts in Florida.

Personal Services Contracts in Florida.

When people are looking to protect assets from the costs of long-term care in Florida, one popular option is the concept of a personal services contract. This article discusses legal ways to protect assets in the event your elder needs long-term care Medicaid. Long-term care Medicaid can help pay for the cost of care at home, in assisted living, or in a nursing home.The goal in creating eligibility for long-term Medicaid generally involves legally reducing the assets to $2,000.00 for a single person or around $140,000 for a couple.  In creating Medicaid, we cannot give money away as this creates a Medicaid transfer penalty. So if we cannot give money away, how can we create Medicaid eligibility while protecting assets? One legal way to do this is to pay a caregiver for future services for the elder in advance.  This is generally referred to as a personal services contract.A personal service contract is an agreement between a caregiver (who can be a family member) and the elder to provide him or her with personal care services for his or her lifetime. This is a lump sum transfer of assets to the caregiver(s) in exchange for their contractual promise of care. As long as the transaction is for fair market value and is legally binding, the government cannot disqualify the applicant for Medicaid long-term care benefits as the transfer is not a gift, it is a payment for services.  Remember that we cannot give away money (or other assets) to receive Medicaid eligibility, but the applicant is allowed to hire someone to help them out within reasonable parameters.  Personal services contracts have been used for years in Florida and have been tested in the Florida appellate court as a valid tool for valid Medicaid “spend down” planning.The services provided by the caregiver generally includes bill payments, talking to doctors, grooming needs, visitation, hospital advocacy, etc., that the nursing home or assisted living facility does not generally provide. The caregiver is essentially getting paid to help the elder receive better care than he or she would receive without an advocate in such a facility.

The payment amount is calculated by the elder’s life expectancy, the amount of work expected and the hourly rate.  A typical example of this calculation is as follows:

Mom is 85 years old and in the nursing home. She has $50,000 in her bank accounts. We want to create eligibility for Medicaid and she has a caregiver who is able and willing to assist her.  Mom’s life expectancy according to the Florida Department of Children and Families is 6.62 years.  If the caregiver is able to work ten (10) hours per week advocating for Mom, which we would deem reasonable under the circumstances, we could pay the caregiver $35/hour (or less).  With this calculation, we would be able to pay a caregiver around $120,484 for his or her expected services (10 hours/week x 52 weeks/year x $35/hour x 6.62 years = $120,484.00). Since Mom only has $50,000 in assets, we could legally pay the caregiver a $50,000 lump sum to create Medicaid eligiblity and reduce her assets to less than $2,000. In this example, this is all done with assistance and guidance from a good elder law attorney.

There are a few items to note in this example:

  • It may be reasonable to pay a caregiver $35/hour in some, maybe not all cases, depending on the work the caregiver provides. The caregiver may be acting in more than just a caregiver role. For instance, the caregiver may provide physical service (checking in on the patient/elder, helping with hygiene issues) while also may provide some things that are closer to a guardianship role (such as bill paying and other legal responsibilities). So we may be able to justify a higher hourly rate in some circumstances, which is very important
  • Personal services contract are very exact and would only be done under certain circumstances with attorney consultation
  • The caregiver will have income tax issues in getting a lump-sum payment
  • The caregiver may need to get consent from Mom’s family/other children as this may disrupt Mom’s estate plan
  • The Personal Services Contract, and all spend down, is documented to the Department of Children and Families, so this is all disclosed to Medicaid as part of the application process
  • The Department of Children and Families reviews the contract, pay rate and the hours as a part of the Medicaid application
  • Each situation is different so an elder law attorney will review all options for correct Medicaid “spend down” planning

We typically look to personal services contracts as a part of spend down planning for single people. Medicaid rules are different between a married couple and a single person, so there may be other (i.e., better) legal ways to protect assets for a married couple.

Explain This Again?

The use of a personal services contract is most likely used in “crisis Medicaid planning,” where the elder is already in a nursing home or the elder needs imminent long-term care Medicaid (such as in-home or assisted living Medicaid). In the above example, Mom is in the nursing home and will be private paying for care when her Medicare/health insurance ends (if she had a 3 day qualifying hospital stay before going to rehabilitation).  Mom has money that would otherwise disappear to the cost of long-term care as the nursing home costs over $10,000/month on private pay. Since her money will be spent very quickly without Medicaid paying for long-term care, the family will want to discuss how to best spend Mom’s money to get Medicaid qualification (for Medicaid to pay for her care faster). The personal services contract will help legally spend her funds down to less than $2,000, so she will qualify for Medicaid sooner with an elder law attorney’s assistance.

Read more related articles here:

Personal Service Contracts. Medicaidplanning.org

37.104 Personal services contracts.

Also, read one of our previous Blogs at:

Personal Care Agreements

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

IRAs and Medicaid Crisis Planning

Dealing with IRAs in Crisis Planning

Dealing with IRAs in Crisis Planning

Thank you to our guest blogger Dale M. Krause, J.D., LL.M., President and CEO of Krause Financial Services, for leading this conversation on dealing with IRAs in crisis planning.

One of the biggest questions my office receives is how to handle a large IRA when conducting crisis planning for either Medicaid or VA. When dealing with VA planning, IRAs are always considered countable assets. In Medicaid planning, the specific rules vary from state to state, but they are considered countable assets in most states. This causes a big problem for attorneys and their clients when trying to accelerate eligibility for Medicaid or VA, however there are ways to save your client’s IRA and still qualify them for benefits.

Don’t Liquidate the Account!

Liquidating an IRA can have some devastating effects on your client. First, the entire value is considered taxable income. This could mean tens of thousands of dollars of tax consequences for your client. Additionally, the amount of the IRA could elevate your client’s tax bracket, forcing them to pay an even higher amount in taxes. Beyond the typical tax consequences of liquidating an IRA, if your married client’s income for the year is above $44,000, up to 85% of their Social Security benefits become taxable. Additionally, their Medicare Part B and Part D premiums could increase.

Alternative Solutions

Using an immediate annuity is a great way to eliminate an IRA as a countable asset and accelerate eligibility for benefits. The annuity contains zero cash value and is considered income only to the owner. Transferring the funds to the annuity is a tax-free event. Rather, the IRA funds are taxed as the annuity payments are made within each calendar year. In short, any tax consequence associated with the IRA are spread out over the term of the annuity.

In VA planning, the annuity can be structured to ensure the claimant’s income does not exceed their UMEs. Both level-pay and balloon-style annuities are available, which means the claimant has maximum flexibility with this product. Additionally, the annuity can be converted to be “Medicaid compliant” at any time should it become necessary.

In Medicaid planning, the annuity is the perfect solution for a community spouse with a large IRA. There are no limitations on the income of the community spouse, therefore the income from the tax-qualified Medicaid Compliant Annuity will not affect the eligibility of the institutionalized spouse. If you have a case that involves an institutionalized spouse with a large IRA, consider using the “Name on the Check Rule”. Ownership of the account cannot be transferred, therefore “Name on the Check Rule” involves the institutionalized spouse purchasing a tax-qualified annuity and designating the community spouse as payee. For Medicaid purposes, this diverts the income directly to the community spouse and it does not become part of the institutionalized spouse’s Medicaid co-pay. (Note: Success of this strategy varies from state to state).

Three Ways to Learn More about IRAs in Crisis Planning

1. Visit Krause Financial Services’ website www.medicaidannuity.com or give them a call at (866) 605-7437 for more information on how to handle IRAs in Medicaid and VA planning. They offer a variety of educational materials for elder law attorneys, including webinars and state-specific resources. The 2018 Krause Report is also available and is a comprehensive guide to crisis planning.

2. Better yet, meet Dale Krause at Symposium 2018. He is presenting “Dealing with IRAs (and Other Tricky Assets) in Medicaid and VA Pension Planning” on July 31 at 4:00 p.m. (View Full Symposium Agenda)

3. Can’t wait? Watch the course “Strategies Using IRAs in Veteran Benefits & Medicaid Planning” Dale Krause recorded for ElderCounsel.

Read more related articles at:

Can an IRA Affect Medicaid Eligibility?

Fixing the Leak: Avoiding IRA Liquidation in Crisis Medicaid Planning

IRA Taxes: Rules to Know & Understand

Coronavirus Relief for Retirement Plans and IRAs

Also, read one of our previous Blogs at:

Must I Liquidate My IRA Before I Can Apply for Medicaid?

Click here to check out our On Demand Video about Estate Planning.

 

 

Join Our eNews

Categories