All states impose a penalty period for a Medicaid applicant who has transferred assets for less than fair market value during the applicable look-back period. In all states but California, the look-back period is 60 months. In California, the look-back period is 30 months. To determine the penalty period amount, the fair market value of the transferred asset is divided by the penalty divisor, which is usually the average private-pay cost of nursing home care in the state or in a specific region of the state.

When the transferred asset is real property, how is the value of that asset determined? Can an appraised value be used? Should the tax assessor’s value be used? If the property is in disrepair, what type of evidence is required to prove the decreased value of that property? These issues were the topic of a recent case out of New Jersey.

Generally, the transfer of a home for less than fair market value will leave a Medicaid applicant with a hefty penalty. However, if the transfer is to a devoted son or daughter that moves in and provides such care that it delays the applicant’s entry into long-term care, then a legal strategy called the child caretaker exception may apply.

WealthCounsel’s Medicaid Asset Protection Trust (MAPT) is a strong tool to use for asset protection. Not only is the trust designed to protect assets from being counted for Medicaid eligibility, the trust can also be designed to accomplish asset protection for beneficiaries. Protecting loved ones is a common goal in elder law cases. Clients want to know that they are not only protecting themselves, but they are doing all they can to better the lives of their loved ones. Asset protection can be a desired product. To be able to protect beneficiaries from creditors, divorce, or judgments is a satisfying feeling. So how can one design the MAPT to achieve the best protection?