The patient is a widower and does not own a home. The item is a mutual fund account held for the past 10 years. The patient's adult son is primary on the account. All earnings have been reported under the son's name and tax ID. The son has paid all income taxes. The only deposit was the initial purchase. Earnings were reinvested the first 3 years, but have been withdrawn for the past 7 years to cover income taxes. The excess from withdrawals is on deposit in the son's savings account.
JTWROS stands for "joint tenants with right of survivorship". This means that both individuals co-own the account and have access to it. If one person dies, the survivor becomes the sole owner. Since they both are named on the account, Medicaid may be able to count this asset. You should consult with an elder law attorney about this issue.
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Joint accounts are generally treated as an available asset to the Medicaid applicant and generally count towards the resource limit, with withdrawals being scrutinized to see if they are "gifts" or "transfers for less than fair market value." Often the Medicaid agency will be satisfied if you can trace the funds in the account and show that the Medicaid applicant was not the person who actually earned/deposited the funds into the account. In any event, you will likely want to consult an experienced local lawyer familiar with Medicaid eligibility rules for advice on what to do and on how this account will likely be treated. You can find an appropriate local Elder Law attorney by using the "find a lawyer" tab here on Avvo.
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The short answer is YES. Assets that are owned jointly are presumed to belong solely to the applicant. But that is a presumption which might be overcome. There are possible ways to potentially alleviate the problem for instance by having the applicant withdraw the amount that can justifiable be attributed to his initial investment plus interest, retitling the fund, and using the money received to purchase an allowable assets (such as an annuity or burial package). So it's tricky. If the fund is not substantial, then perhaps the applicant takes the hit and waits out the penalty period and then reapplies. Thus, a visit to a medicaid planning or elder law attorney is well advised. Good luck!
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