Trusts are certainly not the most perspicuous of legal inventions, but they can be a critical part of elder law planning and special needs planning. Experienced professionals understand the nuances of the various types of trusts available, what language is necessary, and which trust would benefit a client in a given circumstance. But for those of us who need a little refresher, let’s get back to the basics and take a dive into some of the lingo and concepts of special needs trusts.
Due-on-sale clauses are a common element of most mortgages and other loans. The provision is a protection for lenders specifying that if property rights of an encumbered asset are transferred, the lender has the right to demand immediate payment for any amounts due from the debtor. A transfer could be any change in the debtor’s rights to the property – like selling a home or quitclaiming a deed. Logically, upon the sale of a home, a lender would want to recover the balance of the loan owed by the debtor-seller. The original note may say that the debtor has 100 more months to pay, but with the due-on-sale clause, payment is due right away due to the transfer. Fortunately though, not all transfers are treated as “transfers” that trigger the clause.
When there is a dispute as to whether the due-on-sale clause has been activated, challengers look to two different authorities for guidance: the Garn-St. Germain Act and the Office of the Comptroller of the Currency (OCC). Debtors look to the former; lenders look to the latter. Frustratingly, the two provisions do not align entirely.
Medicaid is a federal program, run by individual states, that provides medical care to needy individuals. Many of our elders rely upon this program to access essential medical care for their long-term healthcare needs.
Accessing medical assistance through the Medicaid program is fairly simple at first glance. Generally, those with minimal resources will be afforded government assistance for their medical care needs. As the resources of the applicant increases, so too does the complexity of the application process. The program allows for the exclusion of certain assets and makes certain accommodations for the spouses of applicants, but there are many rules, details, and specifics that must be focused on for success.