By Harry S. Margolis

If you've thought of establishing residence in Florida or another low-tax state to save on income and estate taxes, a recent New York state case sheds light on what steps you need to take. In the case of the Matter of Campaniello, the taxpayer, Thomas Campaniello had extremely high income, over $10 million in 2007, the year in question, including profits on the sale of real estate. This no doubt motivated him to seek to avoid New York state and city income taxes and motivated the New York tax authorities to go after him.

By Rebecca J. Benson

The Center for Medicare and Medicaid Services (CMS) has announced its first comprehensive overhaul of nursing home rules in over 20 years. CMS first promulgated nursing home regulations in 1989 and 1991 to implement the landmark Nursing Home Reform Law of 1987. CMS stated that the new regulations were necessary to reflect innovations in resident care and quality assessment practices, and to address the fact that the population of long-term care facilities has become more diverse and more clinically complex.

By Harry S. Margolis

In the case of Mond v. Pitts (Mass. App. Ct. 15-P-686, Aug. 19, 2016), the Massachusetts Appeals Court corrected an erroneous decision involving two trusts created by Lorenzo Pitts, Sr., who passed away in 2009. Lorenzo Sr. created the Esperanza Trust and the Fort Hill Trust, both of which held real estate in Roxbury. While the trusts had a second trustee and at one point the second trustee also owned 1% of one of the trusts, during his life, Lorenzo Sr. became the sole  trustee and sole lifetime beneficiary of both trusts. The trusts provided that at his death, "the beneficiaries shall be Lorenzo Pitts, Jr. and Robert Pitts, in equal shares." The trusts further directed that the trusts would terminate and that the property be sold and distributed "among the beneficiaries if living."

When planning for the future, one of the questions that parents of intellectually disabled children will need to consider is where the child is likely to live as an adult, and who will pay for it. If the child will need life-long support and will not able to live on his or her own, some governmental assistance may be provided, but how much?

By Harry S. Margolis

A trust is a legal entity that permits one or more people -- the "trustee" or "trustees" -- to manage property for the benefit of other people -- the "beneficiaries." The third actor in a trust is the person who creates it -- the "grantor" or "donor." To confuse things a bit further the same person can be a grantor, trustee and beneficiary, but he can't be the only one in all three roles. And the property in the trust can be just about anything you can own -- real estate, bank accounts, investments, or artwork.

MassHealth funds a Personal Care Attendant (a/k/a Personal Care Assistant), or PCA, program in order to help recipients with long-term disabilities manage their own in-home day-to-day personal care. Under this program, a PCA is hired at a rate of $14.12 an hour (in 2016) to physically assist with both activities of daily living, or ADLs (mobility, bathing, dressing, passive range-of-motion exercises, taking medications, eating, and toileting), and instrumental activities of daily living, or IADLs (laundry, meal preparation and clean up, shopping, housekeeping, traveling to medical appointments, and other special needs).

Frail nursing home residents and their stressed family members are routinely asked to sign a stack of densely-printed documents at the time of admission, without adequate time to review them or consult with counsel. They often do not realize that the agreements include binding arbitration provisions. Although this might sound benign, arbitration requires a waiver of the fundamental constitutional right to a jury trial, even if the resident later suffers serious injury, medical malpractice, or wrongful death. 

I. MassHealth Eligibility and the Family Home

A. Long-Term Care Planning

For all practical purposes, in the United States the only "insurance" plan for long-term institutional care is Medicaid (called “MassHealth” in Massachusetts). Medicare only pays for approximately 20 percent of nursing home care in the United States. Private insurance pays for even less. The result is that most people pay out of their own pockets for long-term care until they become eligible for MassHealth. While Medicare is an entitlement program, MassHealth is a form of welfare -- or at least that's how it began. So to be eligible, you must become "impoverished" under the program's guidelines.

The majority of adult children with significant intellectual disabilities live with their parents or other family members through the child’s 40s, and often 50s. (For purposes of this article, we will refer to the provider as the parent, and the adult with special needs as the child, although this article applies to siblings and other relations as well.) Only about a third of all intellectually disabled citizens in Massachusetts are served by the Department of Developmental Services (DDS) receive housing provided by the state. These people -- tending to be the older or more serious cases -- are considered Priority One for housing by DDS. All other DDS clients are either Priority Two on No Priority. Click here for a description of state-supported housing.

By Harry S. Margolis

Immediate annuities have long been used in long-term care planning as a means of transforming assets that are countable against the limits for MassHealth eligibility into an income stream that does not affect eligibility. This primarily benefits spouses of nursing home residents, but can be used for single nursing home residents as a form of “arbitrage,” in effect to pay the MassHealth rather than the private-pay rates charged by nursing homes.