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Effective: December 1, 2006 |
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19.15ar1 - Availability of Assets (Archive) |
Archived: May 1, 2007 |
Consideration of whether a client is able to access and use an asset for his or her benefit (availability) is needed to determine if that asset should be counted in the client’s asset total or not. Assets are available if the owner has both legal authority and actual ability to use them for self-support.
Availability of Trusts, Annuities and Life Estates.
Jointly Owned Asset Availability.
Presume that the value of the portion of an asset the client owns, in whole or in part, is available, unless the client proves it is not.
l Non-liquid personal property is available even if it is for sale.
Example:
Paul applies for health care. A boat he owns is counted in his asset total and he is determined to be over the applicable asset limit. Paul must reduce assets to be eligible for a health care program. He has decided to put his boat up for sale.
Action:
The equity value of the boat is available because the boat is non-liquid personal property. Continue to count the equity value of the boat in Paul’s asset total.
l Do not consider the terms of a premarital agreement in determining the availability of assets for a married couple.
l If it is unclear whether an asset is available, consult the Health Care Policy or refer the case to the county attorney for a legal opinion on availability.
Availability of Trusts, Annuities and Life Estates
See Trusts for more information on the availability of a Trust.
See Annuities for more information on the availability of an Annuity.
See Life Estates for more information on the availability of a Life Estate.
A client may prove unavailability by verifying a legal or actual barrier to the disposal of the asset that cannot reasonably be overcome.
Do not count assets that are legally unavailable. Review unavailability:
l At each renewal.
l When you anticipate a change in availability.
An asset is unavailable when all of the following criteria are met:
Exception: Do not apply these unavailability rules for jointly owned bank accounts. See Jointly Owned Bank Accounts.
l The permission of a joint owner is required to sell or dispose of the asset.
l The joint owner is not a member of the household or a financially responsible relative whose assets are deemed to the client.
l Meets one of these three conditions:
n The joint owner refuses to allow the sale or disposal of the asset.
n The asset is real property not used as a home and the client is making a good faith effort to sell the property. For more information on ”r;good faith effort” see Non-Homestead Real Property.
n The asset is a contract for deed or a property agreement and the client is making a reasonable effort to sell it. For more information on ”r;reasonable effort” see Contracts for Deed/Property Agreements.
Example:
Jerry applies for health care. He is involved in a lawsuit, and a preliminary court ruling prevents him from selling or disposing of his assets pending further order of the court.
Action:
Consider Jerry’s assets unavailable. Consult the county attorney if the order is unclear.
Example:
Marlene applies for health care for herself and her children. She is divorced from her husband. Marlene and her ex-husband jointly own several acres of undeveloped land which is separate from Marlene’s homestead. Marlene’s ex-husband will not agree to list the land for sale.
Action:
Consider the land as unavailable to Marlene and do not count the equity value toward her asset total. If her ex-husband agrees to sell the land or a court awards the land to Marlene, it would then be an available asset and counted toward her asset total.
Example:
William and Myrna are a married couple living in the community. They jointly own an apartment building with an equity value of $35,000. Only William is applying for health care. Myrna refuses permission to list the property for sale.
Action:
Myrna’s refusal to sell the apartment building does not make the property unavailable. Her assets are deemed to William because she is his spouse and part of his household. Count the full $35,000 equity value of the apartment building toward William’s asset total.
A community spouse’s share of assets held by an LTCF resident, are not available to the LTCF resident up to the date of the first renewal. See Spousal Assets Determination.
Note: For more information on the treatment of assets when one spouse is applying for long term care services for a long term care facility (LTCF) or through the Elderly Waiver (EW) see Asset Assessment.
Waive the value of assets controlled by the community spouse of an LTC resident if s/he refuses to make assets available to meet cost of care. See Spousal Assets Determination.
Jointly Owned Asset Availability
See Jointly Owned Assets to determine what portion of a jointly owned asset is presumed to belong to each owner.
For more information regarding availability of jointly owned bank accounts see Jointly Owned Bank Accounts.
A jointly owned bank account may still be available even when another joint owner refuses access.
To determine whether the account was titled jointly with the intent of allowing both parties full access (available), review the following factors:
l How the account is titled, and laws governing the type of account.
l What agreements, if any, were signed when the account was opened or the second owner’s name was added to the account.
l What policies the financial institution has governing access by joint owners.
l Who contributed to the account.
l Who has had access to the account.
l Who has received income and/or 1099 tax forms from the account.
l Who gets the proceeds if the account is closed.
l Whether the account has named death beneficiaries.
When a jointly owned bank account is determined unavailable evaluate the situation to determine if an improper transfer has taken place. See Transfers.
Example:
Steve opened a brokerage account in his name 10 years ago. Two years ago, he had some health problems and put his son Tom’s name on the account so Tom could help manage the funds. Steve has continued to receive income from the account and has made deposits. Tom has not withdrawn or placed funds in the account.
Steve applies for health care. The account balance exceeds the asset limit for his pending program. Tom, as the joint owner, signs a statement that he will no longer allow Steve access to the account.
Action:
Determine whether Steve still has access to the account. If he does not, evaluate whether placing Tom’s name on the account was an improper transfer.