Asset Considerations 510-05-70-10

(Revised 4/1/04 ML #2912)

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(N.D.A.C. Section 75-02-02.1-25)

 

Assets, not otherwise exempt or excluded, that are available to an applicant or recipient and that are in excess of the Medicaid asset limits are considered to be available to meet the medical needs of the applicant or recipient and cause ineligibility for Medicaid. An asset is any kind of property interest, whether real, personal, or liquid.

  1. All assets which are actually available must be considered in establishing eligibility for Medicaid. Assets are actually available when at the disposal of an applicant, recipient, or responsible relative; when the applicant, recipient, or responsible relative has a legal interest in a liquidated sum and has the legal ability to make the sum available for support, maintenance, or medical care; or when the applicant, recipient, or responsible relative has the lawful power to make the asset available, or to cause the asset to be made available.

An individual may have rights, authority, or powers, which he or she does not wish to exercise. Examples include individuals who choose not to collect a secured debt or individuals who believe family disharmony would result from the sale of the individual's interest. It is important to distinguish the individual's desire to avoid a sale from an absence of any right, authority, or power to sell. In such cases, the value of the property will be counted as an available asset whether or not the applicant or recipient pursues selling the asset. Likewise, Medicaid does not require an individual to begin foreclosure against a note in default. However, because the individual has the authority to do so, the current value of the note will be counted as an available asset.

When an applicant or recipient files bankruptcy, it is necessary to consider the terms of the bankruptcy and to determine which assets are included in the bankruptcy. Any assets that are exempt from the bankruptcy are considered available assets for Medicaid purposes.

When an applicant or recipient is a creditor to someone else who files bankruptcy, determine if the applicant or recipient has any security on the debt. If there is security (e.g. the debt is a contract for deed or promissory note on real property), the asset is considered to be available. If there is no security, the asset is not considered to be available.

Occasionally, some children receive money through the Uniform Gift to Minors Act. These funds are considered available to the child for Medicaid purposes. A minor, or if under age 14, someone acting on their behalf, can request that the funds be made available to meet the needs of the child.

Funds from a loan that must be repaid, and that the applicant or recipient demonstrates are for a purpose unrelated to achieving Medicaid eligibility, are not considered to be available assets if identifiable as a loan and if not commingled with other assets.

The surrender or equity value of any money, insurance, or other property given to another person or entity to be held for the use of a member of the Medicaid unit is considered to be held in trust and is available to the extent provided in 510-05-70-50 (Trusts).

  1. The financial responsibility of any individual for any applicant or recipient of Medicaid is limited to the responsibility of spouse for spouse and parents for a disabled child under age eighteen. Such responsibility is imposed as a condition of eligibility for Medicaid. Except as otherwise provided in this section, the assets of the spouse and parents are considered available even if those assets are not actually contributed. For purposes of this paragraph, biological and adoptive parents, but not stepparents, are treated as parents.

  2. All spousal assets are considered actually available unless:

  1. A court order, entered following a contested case, determines the amounts of support that a spouse must pay to the applicant or recipient;
  2. The spouse from whom support could ordinarily be sought, and the property of such spouse, is outside the jurisdiction of the courts of the United States;
  3. The applicant or recipient has been subject to marital separation, with or without court order, the parties have not separated for the purpose of securing Medicaid benefits; or
  4. In cases where spousal impoverishment applies, the assets are those properly treated as belonging to the community spouse.

  1. All parental assets are considered actually available to a disabled child under age eighteen unless the child is living:

  1. Independently; or
  2. With a parent who is separated from the child's other parent, with or without court order, if the parents did not separate for the purpose of securing Medicaid benefits.