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MassNAELA Elder Law Institute XXVII

Representing Diverse Clients and MassHealth Planning Options – Beyond the Basics

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Panelists and Topics:

Institute Committee

Cathleen H. Summers, Esq., Chair, Brandon L. Campbell, Esq., Samantha F. Gentel, Esq., Margaret Hoag, Esq., Brandon Walecka, Esq.

Keynote Address Provided by Aimee Griffin Joyner, JD, LLM

Practice Issues Related to Meeting the Needs of a More Diverse Population and Building a More Diverse Staff.

Cathleen H. Summers, Esq., Brandon L. Campbell, Esq., Christine M. Nicastro, Esq., Paula A. Nedder, Esq.

Pre-Planning: Learn about options to plan for individuals and married couples that have more than 5 years to prepare for potential long-term care and community based options. This section will also include information on what can be done with real estate.

Matthew P. Albanese, Esq., Faith E. Delaney, Esq. Paula K. Almgren, Esq.

Crisis Planning: Learn about the options that individuals and couples have when long-term care or the need for community MassHealth is imminent. Some of the topics covered will include: Spousal Refusal and Separate Support; use of QDROs; tips for your first or next fair hearing, caregiver child exception, and meeting deductibles in community MassHealth.

Hyman G. Darling, Esq., Daniel Suprenant, Esq., Lisa M. Neeley, Esq., Todd E. Lutsky, Esq.

Considerations After Death: Learn about the latest developments regarding spousal annuities and estate recovery. This section will address several recent court decisions that may affect your planning advice.

Lisa M. Neely, Esq., Patricia Keane Martin, Esq., Meredith A. Fine, Esq.

Date: FRIDAY, September 24, 2021

Time: 8:30 AM – 4:30 PM

Location: MCLE, New England, 10 Winter Place, Boston, MA 02108

Foundation for Continuing Education

What’s New in Medicaid Planning – 2021

From Irrevocable Trusts to Caretaker Children, from Testamentary Trusts and Annuities to IRA’s and Who Should Be the Beneficiary

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The MassHealth agency has been busy issuing Eligibility Operation Memos offering both good and bad news but due to the pandemic have seemed to go unnoticed.

First, the good news – The MassHealth agency’s increased attacks on the ever-popular Medicaid Irrevocable Income-Only Trusts have turned an increasing number of practitioners away from using them. The trick is to ensure they are properly drafted which was difficult to do until now. On February 18, 2020, MassHealth shocked the Elder bar by releasing Eligibility Operations Memo (EOM) 20-04 which offers guidance on the evaluation and countability of Medicaid Irrevocable Income-Only Trusts. It offers drafting language around the most litigated paragraphs of these trusts, including the limited power of appointment to both children and charities, along with the trustee’s powers to lend money and purchase financial products.

Now, the bad news – Eligibility Operations Memo 19-12 redefines how to calculate the value of a life estate and remainder interest in real estate when such property is sold, transferred to a trust, or gifted to a child. The IRS requires us to use one set of tables for these calculations and now MassHealth has required the use of SSA Life Estate and Remainder Interest Tables. What table is a practitioner to use and what are the income tax and Medicaid eligibility ramifications association with using one set of tables over the other? Finally, when are the three times you should consider even using a life estate?

What else is new from testamentary trusts, annuities, IRA’s, and life insurance – While the annuity rules have not changed, we will explore the Dermody decision that sheds some light on who should be named as the designated beneficiary on these Medicaid annuities. Also, what to do if you have a husband and wife in the nursing home and both purchased annuities and one dies before the annuity is issued, can cancel it or keep it? Who gets paid if the community spouse on the annuity dies first? What about IRA designated beneficiaries. Who should they be, the spouse? The Medicaid irrevocable trust? Or maybe even the estate of the participant, i.e., the third rail of beneficiaries? What about life insurance. Should the estate be the designated beneficiary? Does the caretaker child have to be the only one who provides care? Come and learn the answers to these questions and many more regarding the use of these last minute planning techniques.

Turn on your computers, put on your thinking cap, and come learn how to finally draft these irrevocable trusts to withstand MassHealth’s scrutiny by applying their guidelines under the EOM 20-04, while at the same time maintain grantor trust status, make the transfers incomplete gifts for gift tax purposes, preserve the § 1014 step-up in basis, and reduce estate taxes. Finally, we will run through some of the arguments the state is using to challenge these trusts and recent fair hearing decisions. You will also learn the answers to the questions on the last minute Medicaid planning techniques from the caretaker child to the use of annuities and how to best handle IRA’s and life insurance in conjunction with the use of testamentary trusts. Finally, we will explore the look-ack rules, exemptions to the look-back period rules, and run through the countable vs. non-countable assets with a focus on the primary residence and rental property and how to project them last minute.

Date: THURSDAY, October 28, 2021

Time: 9:00 AM – 1:00 PM

Location: Martin Courtyard Natick, 32 Speen Street, Natick, MA 01760


Todd E. Lutsky, Esq., LL.M., Cushing & Dolan, P.C., Waltham

CEU Credits: 4.00

Massachusetts Continuing Legal Education – December 7, 2021

Drafting Successful Medicaid Trusts

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Creating an effective Medicaid trust requires not only a deep understanding of trust law, but also of estate and tax planning. You must know how to draft trust terms that will get approved—not always easy when it seems unclear what the state will—and will not—allow. Using the right language and key terms is vital—and more challenging than ever.

This program provides a review and analysis of recent and current Medicaid trust cases both at the Fair Hearing stage and Superior Court stage. The analysis explores the current arguments the state is making, which includes attacks on the limited power of appointment to charities or children, the argument that nominee realty trusts are revocable, the power to loan money to the donor, the power to terminate the trust, and several others. Learn about the grantor powers that are the safest to use and which ones are being challenged by the state. Hear a discussion of the income tax benefits of making the trust a grantor trust and the importance of keeping the §121 capital gains exclusion. Learn when it might be okay to not make the trust a grantor trust in an effort to reduce the risk of the state challenging the trust, along with the pros and cons of such advice and the circumstances when such advice may be appropriate.

Learn what paragraphs should be in these irrevocable trusts, and which ones to avoid. You also learn how to draft around current challenges and make arguments to distinguish your trust from the Cohen, Doherty, and most recent Braiterman cases that MassHealth uses to attack these Medicaid trusts. We also explore the step-up basis rules and the estate and gift tax rules as they relate to drafting these trusts. More specifically, learn how to draft a QTIP share and a remainder share into these trusts to obtain both estate tax reduction and nursing home protection at the same time.

Finally, we walk through when to use life estates, the two ways to create life estates, and the related income and gift tax issues associated with them. You come away with an in-depth understanding of how these trusts work, how best to draft them, and related estate, income, and gift tax implications associated with using them.

Live Webcast

Date: TUESDAY, December 7, 2021

Time: 2:00 PM – 5:00 PM

Live Webcast, www.mcle.org, Live Webcast


Lisa M. Neeley, Esq., Mirick, O’Connell, DeMallie & Lougee LLP, Worcester

Karen B. Johnson, Esq., Madge & Johnson, PC, Westford
Todd E. Lutsky, Esq., Cushing & Dolan, PC, Waltham

Agenda & Materials

  • Welcome and Introduction
  • How to Draft and Use Medicaid Income Only Trusts in Your Practice
  • How to Make a Medicaid Trust into a Grantor Trust and the Related Income Tax Benefits
  • When and Why It Could Make Sense to Not Make the Trust a Grantor Trust
  • Life Estates and How to Use Them with Medicaid Trusts in Light of Daley
  • Medicaid Trusts: Income, Estate, and Gift Tax Planning
  • Drafting Bypass Trusts and Marital Shares in Medicaid Trusts to Accomplish Estate Tax Savings at the Same Time
  • Current Fair Hearing Decisions and On-Going Superior Court Cases Dealing with These Trusts and Related Arguments Being Made
  • “Ask the Experts” Q&A Session and Key Takeaways

CLE Credits: 3.0