HB640 (2011) Detail

Relative to notice to the department of health and human services of the allocation of spousal income and relative to estate planning by guardians.


HB 640-FN – AS INTRODUCED

2011 SESSION

11-0904

01/09

HOUSE BILL 640-FN

AN ACT relative to notice to the department of health and human services of the allocation of spousal income and relative to estate planning by guardians.

SPONSORS: Rep. Millham, Belk 5; Rep. Cebrowski, Hills 18; Sen. Houde, Dist 5

COMMITTEE: Judiciary

ANALYSIS

This bill requires a petitioner in any petition for spousal support who is a recipient of medical assistance under the state Medicaid program to serve the department of health and human services with a copy of the petition. This bill also allows a guardian to allocate income to a ward’s estate.

This bill is a request of the department of health and human services.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

11-0904

01/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Eleven

AN ACT relative to notice to the department of health and human services of the allocation of spousal income and relative to estate planning by guardians.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Section; Medical Assistance Recipient; Notice of Petition for Spousal Support. Amend RSA 458 by inserting after section 19-a the following new section:

458:19-b Medical Assistance Recipient; Notice of Petition for Spousal Support. If the petitioner or respondent is a recipient of medical assistance under the state Medicaid program, the petitioner shall serve the department of health and human services with a copy of any petition for spousal support filed under this chapter, and the department shall have legal standing to participate and intervene in such action.

2 Estate and Income Planning by Guardian. Amend RSA 464-A:26-a, I and II to read as follows:

I. The probate court may authorize the guardian of the estate to make lifetime gifts, to allocate income, and/or to plan for the testamentary distribution of the ward’s estate consistent with the ward’s wishes. If the ward’s wishes cannot be ascertained, the probate court may authorize the guardian of the estate to plan for the testamentary distribution of the ward’s estate in order to minimize taxation or to facilitate distribution of the ward’s estate to family, friends, or charities who would be likely recipients of gifts from the ward.

II. Before authorizing a guardian to make lifetime gifts or to allocate income, the probate court shall consider the ward’s present and anticipated future expenses for maintenance, support, and medical care, any current or future debts of the ward, and any duty or legal obligation of the ward to support a spouse or dependent family members.

3 Estate and Income Planning by Guardian. Amend the introductory paragraph and subparagraphs (a) and (b) of RSA 464-A:26-a, III to read as follows:

III. The guardian of the estate shall petition the probate court for authorization to make lifetime gifts, to allocate income, and/or to plan for the testamentary distribution of the ward’s estate. This petition shall include the following information:

(a) A description of the proposed action;

(b) The anticipated results including any income, estate, or inheritance tax savings, and, if the gift is being made in order to qualify the ward for Medicaid, [any resulting] whether the action will maximize payments by Medicaid for the ward’s care or result in a period of Medicaid disqualification;

4 Estate and Income Planning by Guardian. Amend RSA 464-A:26-a, VI and VII to read as follows:

VI. The probate court, prior to authorizing a lifetime gift or an allocation of income to the ward’s spouse, shall appoint a guardian ad litem if the proposed gift benefits the guardian personally or otherwise creates a potential conflict of interest between the ward’s interests and the guardian’s personal interests.

VII. The department of health and human services, the county attorney, and the department of justice shall be notified and shall have the opportunity to address the court in any proceeding under this section if the court has concerns relative to:

(a) The impact on the ward of any period of Medicaid ineligibility that would result from the proposed gift; [or]

(b) Whether the ward has been the victim of a crime or has been or is at risk of being abused, neglected, or exploited within the meaning of RSA 161-F:43; or

(c) The cost of the ward’s care to be paid by Medicaid as the result of the proposed gift or asset reallocation.

5 Effective Date. This act shall take effect upon its passage.

LBAO

11-0904

Revised 01/31/11

HB 640 FISCAL NOTE

AN ACT relative to notice to the department of health and human services of the allocation of spousal income and relative to estate planning by guardians.

FISCAL IMPACT:

      The Department of Health and Human Services and New Hampshire Association of Counties state this bill may decrease state revenues, and state and county expenditures, and may increase local expenditures in FY 2011 and each year thereafter. There will be no impact on county and local revenues.

METHODOLOGY:

    The Department of Health and Human Services states this bill requires a petitioner for spousal support to serve the Department with a copy of the petition if either the petitioner or respondent is a recipient of Medicaid. This bill also allows a guardian to allocate income of a ward’s estate and provides that the Department may address the court if the court has concerns relative to the cost of the ward’s care to be paid by Medicaid as a result of the proposed reallocation of income. The Department states currently, if a nursing home patient is a Medicaid recipient, a transfer of his or her income may result in a reduction of the patient’s liability and an increase in Medicaid payments. The Department states under the bill it can participate in spousal allocation actions of the court to reduce the number of unreasonable allocations where the transfer of income a patient’s spouse goes beyond the needs of that spouse. As an example, the Department states there are currently ten nursing home Medicaid recipients who have obtained court orders for spousal support which total approximately $20,218 per month, totaling $242,616. Were this amount to be retained by the nursing home patients, it would decrease the Medicaid liability by the same amount, half of which would be federal expenditures and the other half either county expenditures, or, to the extent Medicaid payments exceed the county cap, general fund expenditures.

    Additionally, the bill requires a petitioning spouse who is a Medicaid recipient to provide the Department a copy of the petition. To the extent the petition results in an increase in the spouse’s income which impacts his or her Medicaid eligibility, general fund expenditures and state revenues and expenditures of federal Medicaid funds may be reduced. Because it is not clear whether any court actions will reduce spousal support payments, the reduction in federal, county and/or general fund expenditures and state revenues of federal Medicaid funds cannot be determined at this time.

    The Department states some Medicaid recipients or spouses may apply to the municipalities for aid if Medicaid assistance or spousal support is reduced or not allocated, thereby increasing local expenditures by an indeterminable amount in FY 2011 and each year thereafter. Because it is not clear whether any court actions will reduce spousal support payments, the potential increase cannot be determined at this time.

    The Judicial Branch and Judicial Council state this bill will not have any significant fiscal impact on state general fund expenditures for the Branch or the Council.