MEDI-CAL BASICS: ARE THERE WAYS TO GIFT THE HOME?
June 15, 2021
What happens when you or your parents wants to give away an asset? In this article, I will describe some ways that a potential Medi-Cal recipient can gift property, more specifically a house, without becoming ineligible.
Sarah was a good, filial daughter. For as long as she can remember, she has been the caretaker for her Mom.
When Sarah was younger, her Mom was hospitalized for three and a half weeks. During that time Sarah had to take care of her siblings and act as head of the household; even though she was only 13. Now as an adult, it seemed like Sarah had finally escaped the role of caretaker. Her siblings had become adults themselves and could take care of themselves. Meanwhile, her Mom’s health had been stable for a few years and she was doing well.
EVERYTHING SEEMED TO BE GOING PERFECTLY FOR SARAH AND HER FAMILY...
Then, three years ago, her Mom suffered a stroke and lost all ability to take care of herself. Since Mom could no longer live alone, Sarah moved back home and began acting as Mom’s full-time caretaker. Within these last three years Sarah has given up her independence and done all she can for her mother. However, her Mom’s condition has not improved, and she progressively needs more and more assistance. It is getting to the point where Sarah alone cannot care for her mother.
The house that Mom owns is in Redlands, CA and it is estimated to be worth about $500,000. Mom knows that Sarah has sacrificed so much, and she would like to repay her. Mom would like to give the house to Sarah as a way of saying “thank you” but she is worried. Mom has heard that giving away a house could ruin her chances of obtaining Medi-Cal benefits in the event she needs them. Worse yet, she is even heard that it could be a criminal act! That last thing she wants to do is cause more problems for her loving daughter. Is there anything that Mom can do to leave a gift to her daughter while avoiding these consequences?
WHAT SARAH CAN DO
There is a provision in the Federal law which is binding in California and it states that you can give a home to an adult child. There are some requirements for this gift. First, the child must have resided in the home for at least two years. Second, the child must have provided care which permitted the parent(s) to stay at home, rather than moving into an institution or facility. In other words, if a child moves back home and cares for a parent, and if that child’s care has kept the parent out of a nursing home for at least the last two years, then the home may be given to the child without Medi-Cal penalties.
So how would this rule apply to Sarah’s situation? How can Sarah prove she has been taking care of her Mom and keeping her from entering a facility?
The best option for Sarah would be to keep a log or journal that sets forth specific incidents or events that, but for the child’s care, might have resulted in Mom’s institutionalization. To oversimplify it, Sarah needs to document the times where she kept her mom from accidentally harming herself. Some examples of this are: turning off the gas burner after Mom has left it on and forgotten, turning off the water when her Mom left the tub faucet running, bringing Mom back home after she wandered away, or any other medically dangerous actions that Sarah alleviated.
Another helpful option is for Sarah to ask for statements from other family members or neighbors detailing any events or circumstances they have witnessed that reinforce Sarah’s position. An example would be a neighbor documenting the time that he saw Sarah run after her Mom after she wandered away from the house. Ultimately, the most helpful option is to obtain a letter from a physician, visiting nurse, or a home health care provider that says that Sarah’s care did in fact keep Mom out of the nursing home for at least two years.
If Sarah can prove that she meets the requirements of the Federal provision, her actions will not go unrewarded. The house may be given to Sarah and Mom can still qualify for Medi-Cal.
OTHER TRANSFER OPTIONS
There are many different scenarios and Sarah's answer might not be the right one for your situation. However, there are other circumstances where the home may be transferred without suffering a penalty. They include transfers to the following:
a minor, blind, or disabled child
a sibling who has an equity interest in the home and who has resided there for at least one year before the Medi-Cal applicant became institutionalized
In our next Elder Law Topic Tuesday, we will discuss how liquid resources can be gifted.
However, if you and/or your family members are facing any of these situations and have questions, please join our newsletter (we have a sign up form on our website) for more information or see about attending one of our FREE seminars.