My significant other and I, who are both in our sixties, are buying a home together and will be listed on the deed as tenants...Read more
How Can Promissory Notes Be Used in Medicaid Planning?
- May 29th, 2013
Promissory notes can be a valuable tool in Medicaid planning, as illustrated by a recent federal district court case.
In order to be eligible for Medicaid benefits, a nursing home resident may not have more than $2,000 in assets (in most states). If used properly, a promissory note can help a nursing home resident reach the appropriate level of assets.
Local Elder Law Attorneys in Ashburn, VA
Margaret A. O'Reilly, PC
Margaret A. O’Reilly is an estate planning and elder law attorney with over thirty-five years of legal experience. Attorney O’Reilly graduated from Duke University with a degree in psychology, and received her law degree from Northeastern University School of Law in Boston, Massachusetts. For over 15 y...
Hale Ball Carlson Baumgartner Murphy PLC
Loretta Morris Williams is a certified elder law attorney by the National Elder Law Foundation. Ms. Williams was admitted to the Council of Advanced Practitioners, National Academy of Elder Law Attorneys (NAELA) in 2012. She serves as President of the Virginia Academy of Elder Law Attorneys. Ms. Willia...
Law Offices of John L. Laster
John Laster is a lawyer licensed to practice in Virginia, Maryland and the District of Columbia. He limits his practice to wealth transfer planning, trusts, wills, powers of attorney, health care decision-making issues, estate administration and related tax, elder law and disability concerns. Listed in The Best Lawyers...
On April 18, 2012, Oklahoma resident Juanita Lemmons transferred her farm and her Edwards Jones investment account to her son, Gary, in exchange for a promissory note in the amount $84,600, and then applied for Medicaid coverage. A promissory note is normally given in return for a loan and it is simply a promise to repay the amount. Under federal Medicaid law, a loan is not supposed to be treated as a transfer of assets for Medicaid eligibility purposes if it satisfies these three standards: (1) the term of the loan must not last longer than the anticipated life of the lender, (2) payments must be made in equal amounts during the term of the loan with no deferral of payments and no balloon payments, (3) and the debt cannot be cancelled at the death of the lender.
The note in this case met the requirements of Medicaid law, but Oklahoma rejected Mrs. Lemmons' application for Medicaid benefits on a number of grounds, including its contention that (1) it was a sham transaction, (2) the note was worthless because it could not be resold, and (3) the transfer of the farm and investment account was subject to a transfer penalty.
Rather than appeal the case through the Oklahoma state system, Mrs. Lemmons (or her attorneys) went immediately to federal district court to assert her rights. In Lemmons v. Lake (U.S. Dist. Ct., W.D. Okla., No. CIV–12–1075–C, March 21, 2013), the court first discusses whether it has jurisdiction over the matter, deciding that it does because Mrs. Lemmons is seeking to enforce an individual right to benefits under federal law.
Turning to the substance of the case, the court finds that the action is not a sham because an enforceable promissory note exists. The court rejects Oklahoma's argument that the note is worthless, finding that the fact that it can't be sold on the open market does not mean that it has no value. Finally, the transfer of property to Mrs. Lemmons' son in exchange for the note does not constitute a disqualifying transfer of assets because Mrs. Lemmons received the promissory note in return.
Some states regularly reject promissory notes, especially if they are between family members. The Lemmons case raises the prospect of bringing these actions in federal, rather than state court, which could have a number of advantages, including: shortening the appeal process, being in front of courts less likely to be swayed by the effect of the decision on the state budget, and the possibility of the state paying legal fees in successful cases.
Before using a promissory note, consult your attorney.
For more information about Medicaid planning, click here.
Last Modified: 05/29/2013