• So Long Sole Benefit Trust?
  • January 13, 2015
  • Law Firm: David E. Waterstradt - Muskegon Office
  • The Michigan Department of Human Services has suddenly changed its policy with respect to trusts for the sole benefit of a spouse of a Medicaid applicant. Prior to this change, a nursing home resident who was applying for Medicaid could transfer any excess assets into a trust for the sole benefit of a spouse living at home, get immediate Medicaid qualification and avoid the need to spend down assets on nursing home care. DHS will now be treating these trusts as countable.

    There was no law change that precipitated this change in policy. DHS simply decided to apply existing law differently. The legal reasoning behind the policy change is highly questionable. DHS is essentially claiming that the nursing home resident has access to the trust assets even though, by definition, the sole beneficiary of the trust is the spouse of the nursing home resident. Therefore, there is a possibility that the denials that many Medicaid applicants are experiencing who established Sole Benefit Trusts will be overturned as contrary to current law. However, those married couples who are currently facing a long term care admission will want to avoid the use of a Sole Benefit Trust until this mess is sorted out in litigation.

    Fortunately, there are other planning alternatives. A married couple facing an immediate need for nursing home care can still obtain immediate Medicaid qualification for the ill spouse by using Medicaid compliant annuities or promissory notes.