Listen to Lawrence…Joint Accounts – your questions answered

DAVIDOWLAW Uncategorized

Dear clients and friends,

Here is another of your questions and my response:

QUESTION:

A savings account has both my mother’s name on it and my name. Would the Medicaid look back (5 years for a nursing home and 2 1/2 years for home care as of 10/1/20) apply to the joint savings account that we are both on (regardless of whether it was large enough to affect any benefits or not)? How do they take into account if the savings account is “owned” by more than one person? She is the primary on the account, and I was added on later (many years ago).

ANSWER:

Joint accounts between a parent and child are very common. The primary reasons people create these accounts are to promote ease of access and to avoid probate.

Having a child joint on a bank account can make it much easier for them to help pay bills, sign a check or get cash from time to time. These can be very convenient especially as you age and are less mobile. Of course, the same can be accomplished with a valid durable power of attorney, but some banks make it hard to use them and they terminate at death when access to the account may still be practical. With a joint account, the joint owner will face no questions accessing your account during your life and after death. We usually recommend such joint accounts when there is very little money involved, like a checking account with just enough money in it to pay monthly bills.

Joint accounts also avoid probate because they automatically pass to the surviving joint owner. The Will is irrelevant in such a case. For example, if the account is joint with one child but the Will says everything should be split with all the children, the account still passes to the joint owner by operation of law. Most joint owning children recognize that this account was for convenience purposes only and so they share the money in the joint account with their siblings after your death. If your child does not share the account, the other siblings can bring a lawsuit against their sibling and will prevail if they can prove it was meant as a convenience account and it was not your intent to have one child inherit the account. To be clear, you can have the bank tag the account as a convenience account so there is no question later on. On the other hand, if it is your intent to have the joint owning child inherit the account, you should make that as clear as you can. I have seen families never speak to each other again over such joint accounts when contrary to the Will terms.

A better solution may be to put the account in a trust with one child as Co-trustee with you. The co-trustee will have access to the account(s) during your life and after your death, but will provide that all the money goes to all the kids. Ultimately, the decision will come down to family dynamics and how much money is involved in the joint account.

So, many of you have these joint accounts for the above and other reasons, but do they, in any way, offer you protection from Medicaid? The answer is a resounding NO! You may wish to argue that 5 years ago you created the account or added your daughter to the account, so your look-back should be over on at least half the account! But alas, no, it does not work that way. Let’s face it, you never really gave anything away. It was your money and remains your money. You even have your social security number attached to the account. Remember this line, if you can get your money, Medicaid can get your money!

If however, your daughter removes money from the joint account, that changes everything. Anytime your daughter removes money from the joint account, that withdrawal will be considered a gift and will start a look back.

Keep in mind however, that a joint account with a child creates a presumption that all the money in the account is yours. This presumption can be overcome. If your daughter can prove that some percentage of the account holds her money, rather than yours, then that percentage would be protected from Medicaid……but how often does that happen?

I hope this helps!

Please pass this information to your family and friends and continue to keep your questions coming! If you are thinking about it, others are probably thinking about it too, so my answers will no doubt help you and many others. Let’s stay connected.

LISTEN TO LAWRENCE!

BE SAFE!