But–Officer–My Transfer Was Not for Medicaid Purposes! in NYSBA's Elder and Special Needs Law Journal
Regina Kiperman, an Associate in the Corporate Services practice, in the New York office, wrote an article titled "But–Officer–My Transfer Was Not for Medicaid Purposes!"
Following is an excerpt:
It's Tuesday morning. You walk into your office, knowing you have to deal with two matters. The first is about John, a healthy and active 68-year-old man who gave $25,000 to his granddaughter, Julie, for her wedding and got hit by a speeding car the next clear and sunny day. John was rushed to the hospital a week ago. He has not recovered from his significant injuries and requires institutionalization. The second is about Anna, a 78-year-old woman who suffers from Parkinson's disease. Anna's husband transferred their personal residence to the children a year ago and has since died. Emotionally devastated from the loss of her spouse, Anna has rapidly declined in health and now also requires institutionalization.
It would appear that both cases will incur a penalty period, unless you can demonstrate that John and Anna should be exempt from the general rule. New York State does not penalize applicants who make a "satisfactory showing that the assets were transferred exclusively for a purpose other than to qualify for medical assistance (‘Medicaid')." Yet, there is a presumption that the applicant made the transfer to qualify for Medicaid, and as a result, the applicant has the burden of rebutting this presumption.
As practitioners, we often struggle with successfully demonstrating that a transfer was made exclusively for purposes other than to qualify for Medicaid. New York has promulgated some guidelines through Regulations and Fair Hearings to assist us in effectively establishing that the transfer was for another purpose. These standards are discussed in this article.
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