Fong Law Group

The Consequences of Not Paying Your Property Taxes

When Geraldine Tyler, age 94, relocated to a senior community, she stopped paying property taxes on her home.

After the property was foreclosed on, the county where Tyler’s home was located sold the property for $40,000 to recover about $15,000 in unpaid property taxes. Tyler received none of the remaining profits from the sale.

In a case now before the U.S. Supreme Court, justices are hearing arguments to decide whether Tyler’s local government violated the U.S. Constitution by keeping more money than it was owed and not returning surplus funds to her.

One of the key issues in this case is whether Minnesota’s Hennepin County violated the Fifth Amendment, which prohibits taking private property for public use without just compensation.

Tyler owed $2,300 in property taxes and approximately $12,700 in interest, penalties, and costs. Hennepin County foreclosed on her home and sold it for $40,000. After repaying itself, it kept the $25,000 remaining and left Ms. Tyler with nothing. Tyler contends this is a violation of the U.S. Constitution. The Supreme Court is expected to rule on the case by June.

Why This Case Is Important for Seniors

The Tyler case highlights an all-too-common issue many elderly homeowners experience after transitioning from their home to a nursing home, a senior community, or assisted living facility.

Many seniors do not sell their home because they wish to leave it to their heirs. However, this transition can often lead to seniors losing track of their finances and failing to pay certain obligations such as their property taxes.

The consequences of doing so can be severe. One is the loss of equity in your home. Another is the loss of the opportunity to transfer wealth from one generation to the next and minimize capital gains taxes paid by heirs. For many people, their home is their most valuable asset.

As people age and depend on a fixed income, many fall behind on their taxes. While this may be a stressful issue, it should not be ignored as it can lead to them losing all the equity they have in their homes.

If you or a loved one may be facing this situation, talk about it before it gets out of hand or unmanageable.

What You Should Do

What can you do if you or a loved one have questions about your property tax obligations as the transition to a different stage of life happens?

First, understand that as long as a person is a homeowner, they must pay property taxes. However, in many states, once a homeowner reaches a certain age or their income decreases, they may be entitled to a property tax exemption or discount. The homeowner should apply for this as soon as possible once they become eligible, as in some states, it can reduce the obligation amount significantly.

If your loved one is in a nursing home or elder care facility, speak with them about the issue and see if they are up to date. If you have a power of attorney for an elderly family member or friend, check in with the local tax assessor and verify where things stand.

Finally, if you are behind on property taxes, be proactive about resolving the delinquency. Many local governments have programs to help homeowners repay their debt and keep their property.

In the Tyler case, Tyler, by law, had the right to redeem her property and repay her unpaid taxes, interest, penalties, and fees over three years. Other states have similar programs. However, these generally must be entered into within a specific timeframe. This is why addressing the issue as soon as possible is crucial.

Helping Senior Homeowners

The bottom line is that a homeowner, regardless of their age, needs to pay their property taxes to preserve the ability to transfer generational wealth to their heirs in the form of equity from their home.

Children, trusted friends, or caretakers may need to be proactive in helping senior homeowners assess whether they may have a delinquency to avoid the severe consequences of not paying property taxes imposed by some states.

Consult with your elder law or attorney for further guidance. 

Editor's Note: In late May 2023, the U.S. Supreme Court ruled in favor of Geraldine Tyler. 

Which Should I Choose? Nursing Home Care vs. Hospice Care

End-of-life decisions are never easy. One of the most important decisions you may make regarding health care as you age could be whether you need a nursing home or hospice care.

To make the best choice for you and your family, it helps to know the difference between the nature of the care provided through a nursing home as compared with hospice.

Nursing Home Care

Nursing home facilities offer residential care for the elderly and disabled. The treatment patients receive from a nursing home differs from what is available in hospice care. Residents at nursing homes receive treatment to extend their lives. Care that you can expect from a nursing home may include custodial and some skilled care.

Custodial care includes nonmedical treatment, such as assistance with dressing, bathing, cooking, laundry, and other types of personal care. The provider does not need a medical license to give residents this type of care.

Skilled nursing care is provided by licensed medical practitioners. Nursing home residents may receive some skilled care, including wound care, physical therapy, injections, and other care that they may need to ensure their physical well-being.

Note that Medicare generally does not cover custodial care. And while Medicare Part A (hospital insurance) coverage may be available for enrollees with certain medical conditions, it is often limited to those who need short-term care in a skilled nursing facility, rather than a nursing home. (Learn more about Medicare’s limited nursing home coverage.)

If you are eligible for Medicaid, a program for individuals with limited income and assets, there are nursing homes in many states that accept Medicaid patients.

What Is Hospice Care?

Hospice care is an option for patients who do not wish to receive treatment to help improve their condition or extend their life, but want comfort care as they reach the end of their lives. Your hospice care team may include doctors, nurses, social workers, spiritual advisors, and volunteers.

A hospice care team is trained in treating end-of-life pain. Hospice care can be administered in a patient’s home or in an institutional setting. It also may provide support to family members and caretakers, including respite care.

If a patient has Medicare Part A and meets the following qualifications, they may have hospice care services, including pain-relieving medication and home aide services, covered:

• A primary care physician, or a hospice care doctor, confirms that the patient’s condition is terminal and they will not live for more than six months.
• The patient is willing to receive palliative care only and not care that is intended to try and improve their condition.
• The patient signs a statement confirming that they will receive hospice care instead of any other Medicare-covered treatments related to their physical condition.

For Medicaid recipients with a terminal illness, certain states may provide help in paying for hospice.

A Note on Concurrent Care                                         

Complicating matters is the fact that Medicare will generally not cover nursing home care and hospice care, known as concurrent care, at the same time. Currently, individuals on Medicare must give up Medicare payment for care related to their terminal condition if they want to receive Medicare’s hospice benefit. As a result, many individuals facing a terminal illness may not opt for hospice support services.

Policymakers have been pushing for a benefit within Medicare that would allow patients who wish to benefit from hospice care services (for example, a hospice aide, in-home respite care, or nutritional support) to receive curative treatment (for example, chemotherapy) simultaneously.

The Centers for Medicare and Medicaid Services has spent the past several years testing various models, including one known as the Medicare Care Choices Model (MCCM). MCCM has been shown to improve the quality of patients’ end-of-life while also resulting in Medicare savings. However, this option has not yet been made permanent.

End-of-Life Dilemma: Which Should I Choose?

While considering the next steps to take in your health care plan, speak candidly with your family and health care team about your needs and how you see your future.

If you have questions about coverage options that may be available to you in a nursing home or with hospice care, speak to your elder law attorney.

Caregiver Contracts: How to Pay a Family Member for Care

Although people are willing to voluntarily care for a parent or loved one without any promise of compensation, entering into a caregiver contract (also called personal service or personal care agreement) with a family member can have many benefits. It rewards the family member doing the work. It can help alleviate tension between family members by making sure the work is fairly compensated. In addition, it can be a be a key part of Medicaid planning, helping to spend down savings so that the elder might more easily be able to qualify for Medicaid long-term care coverage, if necessary.

The following are some things to keep in mind when drafting a caregiver contract:

• Meet with your attorney. It is important to get your attorney's help in drafting the contract, especially if qualifying for Medicaid is a goal.
• Caregiver's duties. The contract should set out the caregiver's duties, which can be anything from driving to doctor's appointments and attending doctor's meetings to grocery shopping to help with paying bills. The length of the term of the contract is usually for the elder's lifetime, so it is important to cover all possibilities, even if they are not currently needed. The contract can continue even if the elder enters a nursing home, with the caregiver acting as the elder's advocate to ensure the best possible care.
• Payment. Payment to the caregiver can either be made with a lump-sum payment or in weekly or monthly installments. For Medicaid purposes, it is very important that the pay not be excessive. Excessive pay could be viewed as a gift for Medicaid eligibility purposes. The pay should be similar to what other caregivers in the area are making, or less. To calculate a lump-sum payment, take the monthly rate and multiply it by the elder's life expectancy. (Note that some states, Georgia for example, do not recognize the ability to create a lump sum contract based upon life expectancy.)
• Taxes. Keep in mind that there are tax consequences. The caregiver will have to pay taxes on the income he or she receives.

Other sources of payment. If the elder does not have enough money to pay his or her caregiver, there may be other sources of payment. A long-term care insurance policy may cover family caregivers, for example. Also, there may be state or federal government programs that compensate family caregivers. Check with your local Agency on Aging to get more information.

Transferring Assets to Qualify for Medicaid

Transferring assets to qualify for Medicaid can make you ineligible for benefits for a period of time. Before making any transfers, you need to be aware of the consequences. 

Congress has established a period of ineligibility for Medicaid for those who transfer assets. The so-called "look-back" period for all transfers is 60 months, which means state Medicaid officials look at transfers made within the 60 months prior to the Medicaid application. 

While the look-back period determines what transfers will be penalized, the length of the penalty depends on the amount transferred. The penalty period is determined by dividing the amount transferred by the average monthly cost of nursing home care in the state. For instance, if the nursing home resident transferred $100,000 in a state where the average monthly cost of care was $5,000, the penalty period would be 20 months ($100,000/$5,000 = 20). The 20-month period will not begin until (1) the transferor has moved to a nursing home, (2) he has spent down to the asset limit for Medicaid eligibility, (3) has applied for Medicaid coverage, and (4) has been approved for coverage but for the transfer. Therefore, if an individual transfers $100,000 on April 1, 2017, moves to a nursing home on April 1, 2018 and spends down to Medicaid eligibility on April 1, 2019, that is when the 20-month penalty period will begin, and it will not end until December 1, 2020.

Transfers should be made carefully, with an understanding of all the consequences. People who make transfers must be careful not to apply for Medicaid before the five-year look-back period elapses without first consulting with an elder law attorney. This is because the penalty could ultimately extend even longer than five years, depending on the size of the transfer.

Be very, very careful before making transfers. Any transfer strategy must take into account the nursing home resident's income and all of his or her expenses, including the cost of the nursing home. Bear in mind that if you give money to your children, it belongs to them and you should not rely on them to hold the money for your benefit. However well-intentioned they may be, your children could lose the funds due to bankruptcy, divorce, or lawsuit. Any of these occurrences would jeopardize the savings you spent a lifetime accumulating. Do not give away your savings unless you are ready for these risks.

In addition, be aware that the fact that your children are holding your funds in their names could jeopardize your grandchildren's eligibility for financial aid in college. Transfers can also have bad tax consequences for your children. This is especially true of assets that have appreciated in value, such as real estate and stocks. If you give these to your children, they will not get the tax advantages they would get if they were to receive them through your estate. The result is that when they sell the property they will have to pay a much higher tax on capital gains than they would have if they had inherited it.

As a rule, never transfer assets for Medicaid planning unless you keep enough funds in your name to (1) pay for any care needs you may have during the resulting period of ineligibility for Medicaid and (2) feel comfortable and have sufficient resources to maintain your present lifestyle.

Remember: You do not have to save your estate for your children. The bumper sticker that reads "I'm spending my children's inheritance" is a perfectly appropriate approach to estate and Medicaid planning.

Even though a nursing home resident may receive Medicaid while owning a home, if the resident is married he or she should transfer the home to the community spouse (assuming the nursing home resident is both willing and competent). This gives the community spouse control over the asset and allows the spouse to sell it after the nursing home spouse becomes eligible for Medicaid. In addition, the community spouse should change his or her will to bypass the nursing home spouse. Otherwise, at the community spouse's death, the home and other assets of the community spouse will go to the nursing home spouse and have to be spent down.

Permitted transfers

While most transfers are penalized with a period of Medicaid ineligibility of up to five years, certain transfers are exempt from this penalty. Even after entering a nursing home, you may transfer any asset to the following individuals without having to wait out a period of Medicaid ineligibility:

• Your spouse (but this may not help you become eligible since the same limit on both spouse's assets will apply)
• A trust for the sole benefit of your child who is blind or permanently disabled.
• Into trust for the sole benefit of anyone under age 65 and permanently disabled.

In addition, you may transfer your home to the following individuals (as well as to those listed above):

• A child who is under age 21
• A child who is blind or disabled (the house does not have to be in a trust)
• A sibling who has lived in the home during the year preceding the applicant's institutionalization and who already holds an equity interest in the home

A "caretaker child," who is defined as a child of the applicant who lived in the house for at least two years prior to the applicant's institutionalization and who during that period provided care that allowed the applicant to avoid a nursing home stay.

Medicaid's Gift to Children Who Help Parents Postpone Nursing Home Care

In most states, transferring your house to your children (or someone else) may lead to a Medicaid penalty period, which would make you ineligible for Medicaid for a period of time. However, there are circumstances in which transferring a house will not result in a penalty period.  

One of those circumstances is if the Medicaid applicant transfers the house to a "caretaker child."  This is defined as a child of the applicant who lived in the house for at least two years prior to the applicant's entering a nursing home and who during that period provided care that allowed the applicant to avoid a nursing home stay.  In such cases, the Medicaid applicant may freely transfer a home to the child without triggering a transfer penalty.  Note that the exception applies only to a child, not a grandchild or other relative.

Each state Medicaid agency has its own rules for proof that the child has lived with the parent and provided the necessary level of care, making it doubly important to consult with your attorney before making this (or any other) kind of transfer.

Others to whom a home may be transferred without Medicaid's usual penalty are:

• Your spouse
• A child who is under age 21 or who is blind or disabled
• Into a trust for the sole benefit of a disabled individual under age 65 (even if the trust is for the benefit of the Medicaid applicant, under certain circumstances)
• A sibling who has lived in the home during the year preceding the applicant's institutionalization and who already holds an equity interest in the home

Being Forward-Thinking About Assisted Living to Avoid a Crisis

“When all is well, it’s difficult to convince mom, dad, a partner or other loved one to plan for the future. The alternative is much worse, because it means facing decisions during a crisis.”

We always think there will be time to plan for assisted living, until something happens and then we are facing an emergency. When a loved one is discharged from the hospital and can’t return home, there’s little or no time to find the right place for them to live. As Next Avenue advises in the article “Planning Ahead for Assisted Living,” don’t wait for the emergency.

Many people deal with assisted living this way. Adult children uproot their lives and relocate to be near their aging parents. Spouses feel helpless when their husbands or wives refuse to even consider moving to a facility, yet they are not safe at home.

The senior often pushes back against leaving their home, which is understandable. However, when illness or aging takes a toll, it’s just a matter of time before they understand, usually the hard way.

One woman was the very model of aging-in-place, until turning 85. Then illnesses and a chronic condition started making it hard for her to move around. When she was taken to the hospital, she had to take a clear look at her situation. It was distressing, but she realized she had to make a change.

By 2030, the number of Americans age 65 and older is expected to increase dramatically, and for the first time in our country’s history, the number of older Americans will be higher than the number of children.

We may not know what life has in store for us. However, we can plan ahead.

Some people start looking at CCRCs–Continuing Care Retirement Communities. These are facilities that include independent living, assisted living and nursing home care, all on the same property. Some have secured memory care for those living with dementia.

Research the costs, policies, and programs of the long-term facilities you may be considering. There are different services offered. Assisted living facilities are state-licensed housing communities that offer residents a range of services. They usually do not offer medical care. A skilled nursing facility/nursing home will have medical services.

Services in assisted living communities vary. Some offer meals and help with bathing, dressing and mobility, medication management, education and social activities. They may be large or small, with residential homes, where three or four residents live with a paid caregiver. Those are known as “adult foster homes.” Others are “assisted living homes,” which usually have 10 or so residents. In these facilities, the caretakers don’t live in the house, but 24-hour care is provided.

Here are some questions to ask, when visiting assisted living communities:

• Is the facility clean? Does it smell?
• What is the culture and atmosphere of the place?
• Are the residents and employees smiling, or does everyone look downcast?

It is recommended that people visit the facility several times, at different times, to get a better sense of the facility.  You should also eat in the dining room a few times. Are people friendly? How is the quality of the food? Set up a meeting with the people who run the facility and your family members.

Don’t dismiss the concerns of your loved ones when visiting facilities. They need to be comfortable, and it’s very important for them to have a voice in making this decision.

Reference: Next Avenue (Jan. 21, 2019) “Planning Ahead for Assisted Living”

Don’t Forget to Plan for Your Furry Friends

“What would happen to your pet’s if you died tomorrow? Would a friend or relative take them? Are you sure?”

If you have pets that you consider family members, you’ll want to make sure you have made plans for their care, after you have passed. That’s the message from U.S. News & World Report in the article “How to Build an Estate Plan for Your Pets.”

How much time and money you devote to your pet’s care after you are no longer able to care for them, varies widely from state to state and depends on what you consider a comfortable lifestyle for your furry pals. You might include your pet in your estate in some states, or you may do better with a pet trust.

Include your pet in your will. One option is to use your will to leave your pet and some money to a trusted caretaker. This is kind of like leaving a collectable car to someone, as opposed to asking someone to be a guardian for your minor children. You are transferring the pet as an asset and making a bequest of a certain amount of money for their care. However, remember that the funds are being transferred with the hope and trust that the person will use them as you intend. The use of the money is not legally binding.

Have a pet trust created. This is admittedly a more expensive way to go but it gives you more control over the care of your pet. It allows you to set up a plan that mirrors how you’d create a plan for guardianship, rather than a piece of property. Your estate planning attorney will know what your state allows for pets.

The key part of a pet trust is the designation of a primary caretaker or physical custodian who will be responsible for caring for your pet on a daily basis. The second is a trustee, who will be sure that funds allocated to the pet trust are managed, invested and paid out as needed.

Get buy-in from the trustee and the caretaker. This is not something you want to spring on someone after you’re gone. Make sure the people you have in mind understand what you want them to do and what their responsibilities will be. You also want a back-up plan. Some shelters, especially no-kill shelters, have plans for taking in pets for the rest of their lives, although they do request a donation be made. Visit the facility and make sure you understand how their program works, before naming them as a back-up on your pet care plan.

Know how much this will cost. Caring for a quarter horse will have a completely different cost than caring for a 70-pound golden retriever. If you can, track the cost of care, including food, toys, vet visits, groomers, etc., over the course of a year. Talk with your vet about expected medical costs for the future, especially if your pet is very young. Plan out your budget carefully, so the caretaker will have enough money, then leave a little extra for unforeseen circumstances.

Keep your pet care plan up to date. Just as your estate planning documents need to be kept up to date, so do those for your pets. If you add another furry member to the family, or if one dies, make sure that your estate plan reflects these changes.

Resource: U.S. News & World Report (Sep. 20, 2018) “How to Build an Estate Plan for Your Pets”