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We've all received the call—aging parents wanting to transfer their homes to their children. Beware: What might seem like a simple real property question can turn into a Medicaid mess. Gifts, including any transfer for less than fair market value, can trigger immediate transfer penalties, including loss of all benefits, request for recoupment of overpayments and nursing home discharge. More and more, real estate attorneys need to be asking clients questions about medical benefits, healthcare needs and long-term care before drafting real property deeds.

Here's the problem: Mom or Dad might need nursing care and can't afford the $5,000.00 or more a month it can cost, so they apply for Medicaid to pay the difference. Immediately, the State workers, and well-intentioned providers begin the drum beat: The state is going to take mom's home. Terrified of losing the home, the client then gives the home away to the kids, a transfer of assets for less than fair market value, which can result in immediate loss of all benefits. Medicaid assesses a transfer penalty for most transfers made in the previous five years without full fair market value compensation. (Medicaid Eligibility Handbook [MEH] Section I-1200) The penalty period for most transfers doesn't begin to run until the first day of the month when the client is otherwise eligible. (MEH Section I-5200)

Why not just leave the home in Mom's or Dad's name? You may do so at the risk of losing it. The threat comes from the great boogeyman of Medicaid—The Medicaid Estate Recovery Program or MERP. MERP causes so much fear among the elderly that many who need care refuse to apply for benefits. It's a misunderstood Medicaid program, and Texas Health and Human Services has no stated intention of correcting the pervasive culture of misinformation.

The program creates fear in the hearts of the elderly and disabled because it allows Texas to recover from the probate estates of people who have received long-term care benefits. The fact is that most people won't lose their homes if they receive competent legal advice.

Many people believe MERP can take a person's home during that person's life to pay for care or that MERP can put a lien on the home. That is simply not true. The truth is that the statute controlling MERP is a creditor claim statute, making MERP a Class 7 creditor under Section 355 of the Texas Estates Code. Not only can't MERP take the client's home during her life, but in terms of getting paid from the estate, they rate just above unsecured credit card debt. (Tex. Estates Cd. Sec. 355.) Just as importantly, MERP can never put a lien on a nonprobate home in Texas. That's why any time a client receives long-term care Medicaid, the goal is to remove the estate from the formal probate process.

The solution is often a Lady Bird deed or a transfer on death deed. Both are enhanced life estate deeds that do not trigger penalty periods under Texas Medicaid rules. This allows the grantor to retain, above and beyond a traditional life estate, the right to sell, transfer, encumber or take most other actions a fee simple owner could take, without the joinder of the remainder beneficiary, as the grantor also retains the power of appointment. They both convey only a contingent remainder interest and thus incur no transfer penalty under Medicaid rules. Title then passes automatically upon the grantor's death. Thus, the home is a nonprobate asset, not subject to a MERP claim.

While neither Lady Bird deeds and transfer on death deeds trigger Medicaid penalties, both allow retention of all property tax exemptions. A Lady Bird deed conveys warranties and can be signed by an agent under a power of attorney. A transfer on death deed is revocable, but it carries no warranties, cannot be signed by an attorney-in-fact under a power of attorney and does not trigger a due-on-sale clause if there is a mortgage.

Lady Bird deeds come in handy when the grantor lacks capacity, as long as the conveyance follows the will or intestate succession, if there is no will.

If an agent under a statutory durable power of attorney is signing on behalf of the principal, make sure that the agent does not transfer the home to himself. Title companies may not insure a subsequent sale because of questions over self-dealing and possible breach of fiduciary duty. For this reason, most planning firms include specific self-dealing language to allow this type of transaction.

In fact, the legislative and judicial focus in recent decades has been to scrutinize self-dealing and accounting by agents. Section 751 Subchapter C of the Texas Estates Code clarifies that fiduciary agents have a duty to inform and account for actions. The courts say the agent owes the principal the “high duty of good faith, fair dealing, honest performance and strict accountability,” according to the Texas Court of Appeals in Sassen v. Tanglegrove Townhouse Condo Assoc. That duty is increasingly including the duty to investigate the direct, life-threatening repercussion of losing Medicaid benefits.

Attorneys must exercise caution and ask a lot of questions about a client's health and their plans for paying for their health care in the coming years before drafting deeds. Remember that transfers can deny people vital nursing care services by pricing them out of range during a transfer penalty period. Call an expert if you are unsure. Remember that no one should have to refuse nursing care for fear of losing her home, and thank goodness, give-backs are always allowed!

Stephanie Townsend Allala is CEO of Townsend Allala and Associates in El Paso, an Elder Law firm. She is a director on the board of the National Academy of Elder Law Attorneys-Texas Chapter, and she uses transfer on death deeds and Lady Bird deeds in her regular practice. She can be reached at [email protected].