Kicking Dad to the Curb

One of the most common questions I hear has to do with the placement of a family member in a long-term care facility, such as a nursing home or assisted living residence. Essentially, people want to know if their parent or spouse will be able to get into the appropriate facility given the amount of money the person has. A client might say to me: Dad has $100,000 in a bank account and that’s it. Do you think he’ll be able to get into the nursing home we want him to go to when the time comes?

Nursing homes and assisted living residences are different types of facilities. A nursing home typically has more nurses on staff than an assisted living residence and is more hospital-like in its setting than an assisted living residence. An assisted living residence is a residence that provides some assistance. Many assisted living residences have nurses on staff and have aides who are there to assist the residents at all times.

In the past ten years, assisted living residences have been beefing up the assistance that they provide to their residents, selling themselves as capable of caring for all the resident’s current and future needs. On the other hand, during this same period of time, nursing homes have been trying to look more residential than hospital-like. In essence, the two facilities, while licensed by the State differently, are coming together in their look and the care they provide to their residents.

Nevertheless, the facilities are licensed differently and are governed by different rules. A nursing home is governed by the Nursing Home Reform Act of 1987, a federal law that guarantees certain rights to residents of nursing facilities. One right prohibits a nursing facility from seeking a guarantee of private payment from a resident. Another right prevents a nursing facility from prohibiting a resident from applying for Medicaid benefits.

Most people who enter a nursing home enter the home from a hospital. For instance, Mr. Smith will fall and break his hip. Mr. Smith will go from the hospital to a nursing home for rehabilitation of his newly-mended hip. Once he is in the nursing facility, that facility cannot require him to private pay for any period of time; moreover, the facility cannot prevent Mr. Smith from apply for Medicaid benefits.

In short, even though Mr. Smith entered the nursing home for rehabilitation, the nursing home must accept him as a Medicaid beneficiary once he applies for benefits and is accepted on the Medicaid program. The nursing home may tell the family differently, but that is untrue. For instance, there is no Medicaid waiting list for a Medicaid bed. In most every facility in New Jersey, all of the beds in the facility are certified for Medicaid beneficiaries, so if Mr. Smith is in a bed in the nursing home, he is in a Medicaid bed.

Assisted living residences are not governed by the Nursing Home Reform Act, because these facilities are not nursing homes. An assisted living residence can require a period of private payment before it will accept a resident as a Medicaid beneficiary. Furthermore, unlike nursing homes in which every bed is a Medicaid bed, most assisted living residences in New Jersey only have to accept Medicaid beneficiaries in 10% of their beds.

So, if Mr. Smith wants to enter an assisted living residence, he typically must guarantee private payment for some length of time. How long that period of time is depends on how many applicants the assisted living residence has at that point in time seeking to live at that facility.

An assisted living residence may want prospective residents to show 1 year or 18 months or 2 years of private payment before the facility will accept the person as a resident. Very few assisted living residents in New Jersey will accept a potential resident who cannot show an ability to private pay for any length of time.

The Tax-Deferred Annuity

After an individual dies, his estate must be administered. Many people call estate administration “probate,” but probate is only one small part of estate administration.

Estate administration involves admitting the last will and testament of the decedent to probate, gathering up all of the decedent’s assets into an estate account, paying all of the decedent’s debts and the debts of his estate, accounting to the beneficiaries of the estate, and distributing the assets of the estate. In short, estate administration is a winding down of the decedent’s affairs.

There is no shortage of mistakes that an individual can make in administering a decedent’s estate. The process is not simple. It is my firm belief that many people act as the executor of an estate, make numerous mistakes, and neither they nor the beneficiaries of the estate are every the wiser about the mistakes that were made.

In this article, I’m going to discuss common mistakes that can occur with tax-deferred assets, such as individual retirement accounts (IRA), bonds, and annuities. All of these assets have accrued income on which the decedent did not pay income tax. When the money is removed from the account, income tax issues are implicated.

The first issue with these accounts is the fact that the accounts are includible in the decedent’s estate for purposes of calculating any estate tax that may be due on his estate, and when the income is removed from the account, the beneficiary must pay income tax on the money removed from the account. For this reason, many people say that these assets are subject to a double taxation.

Since the decedent did not pay income tax on the money in the IRA and on the interest that has accrued on the bonds and the annuity, the beneficiary of these assets must pay income tax on the money when it is removed from the account. When the beneficiary removes the money from the account (the IRA, the bond, the annuity), his income for the year will increase.

Sometimes, the increase in the beneficiary’s income can be significant. For instance, an IRA worth $150,000 will result in $150,000 of extra income to the beneficiary if the beneficiary removes all of the money from the IRA in one year. A US savings bond might have significant deferred income built up inside of it. By surrendering the bond, the beneficiary will have to report this income. Similarly, if a deferred annuity (an annuity on which taxation of the accrued income is deferred until the income is removed from the account) is surrendered, the beneficiary will have to report all the income that has built up in the annuity on his tax return.

This income could easily push the beneficiary into a much higher tax bracket. The income may also disqualify the beneficiary for certain means-tested benefits, such as a homestead rebate or other subsidies that he may receive. The higher income may cause the beneficiary to pay higher Medicare premiums.

There are a number of negative implications that can result when an individual imprudently removes money from inherited accounts. As the executor of an estate, and even as the beneficiary of an estate, you need to be mindful of these implications. While it’s certainly nice to receive an inheritance, there are smart ways and not-so smart ways in which to accept the inheritance.