Medicaid planning is often a complex process aimed at preserving a person's assets while qualifying for Medicaid benefits. Finding a way to pay for long-term care costs without depleting all your hard-earned assets is a key part of Medicaid planning.

One strategy for protecting assets and qualifying for Medicaid that has gained attention in recent years is the use of promissory notes. This article will provide an explanation of promissory notes in the context of Medicaid planning, including their purpose, legality, implications, and considerations. Note that not all states allow promissory notes. Consult with an experienced elder law attorney before using one.

What Are Promissory Notes?

A promissory note is a legally binding document that outlines the terms of a loan agreement between two parties: the lender (creditor) and the borrower (debtor). It includes details such as the loan amount, interest rate, repayment schedule, and any other relevant terms and conditions. Promissory notes are commonly used in various financial transactions, including loans between individuals, businesses, and financial institutions.

Promissory Notes in Medicaid Planning

Medicaid is a public assistance program that assists individuals with limited income and resources in obtaining health insurance. It also serves as the primary way for millions of seniors in the United States to pay for long-term care services.

To qualify for Medicaid in most states, you must have no more than $2,000 in so-called “countable” assets to your name. But you can't just start shedding assets at the last minute in order to qualify.  Gifts made within five years prior to applying for Medicaid result in a penalty period during which you may not be able to receive benefits.  This penalty period can be quite lengthy, depending on the value of assets that were given away without fair consideration.

Not everyone plans more than five years in advance to shed assets, as many people do not expect they will need long-term care.

A Medicaid applicant may use a promissory note to transfer assets to other individuals, such an adult child, while still complying with Medicaid eligibility requirements. By transferring assets through a promissory note, they can effectively reduce their countable assets, thereby helping them meet Medicaid's asset limit criteria.

How Do Promissory Notes Work in Medicaid Planning?

A person seeking Medicaid benefits might opt to sell some of assets to a family member, typically an adult child, in exchange for a legally binding promissory note.

The promissory note lays out the terms of the loan, including the principal amount, interest rate, repayment schedule, and other relevant information.

The borrower agrees to repay the loan according to the terms set forth in the promissory note, usually through regular installment payments over a specified period.

By transferring assets in exchange for a promissory note, the person seeking Medicaid benefits effectively reduces his or her countable assets, potentially qualifying him or her for Medicaid coverage.

Legal Considerations

Though promissory notes can be a valuable tool in Medicaid planning, it's important to ensure compliance with state and federal laws and regulations. As mentioned, Medicaid has strict rules regarding asset transfers and eligibility. Improper use of promissory notes could result in penalties or loss of benefits.

Key legal considerations include the following:

• Fair Market Value: The terms of the promissory note, including the loan amount and interest rate, should reflect fair market value to avoid scrutiny from Medicaid authorities.
• Payments: Payments on the loan must be made in equal amounts during the term of the loan with no deferral of payments and no balloon payments. (A balloon payment is a large payment made at the end of a loan's term, after making much smaller payments along the way.)
• Term of the Loan: The term (length of time) of the loan must not last longer than the anticipated life of the lender.
• Debt Cancellation: The debt cannot be cancelled upon the lender's death.
• Arm's Length Transaction: The transaction should be conducted as an “arm's length” transaction, meaning it should be carried out as if the parties were unrelated and dealing with each other at arm's length.
• Look-Back Period: As stated above, Medicaid has a look-back period during which asset transfers are subject to scrutiny. In most states, the look-back period is five years. Any transfers made within this period may affect Medicaid eligibility, so it's essential to plan accordingly.
• State-Specific Regulations: Medicaid rules vary from state to state, so it's crucial to consult with an experienced attorney familiar with Medicaid regulations in your state to ensure compliance.

Benefits of Using Promissory Notes in Medicaid Planning

Promissory notes offer several potential benefits in Medicaid planning, including the following:

• Asset Preservation: By transferring assets in exchange for a promissory note, individuals can preserve their wealth while still qualifying for Medicaid benefits to cover long-term care expenses.
• Control: The lender retains control over the repayment schedule and can customize the terms of the promissory note to suit his or her needs.
• Family Involvement: Promissory notes provide an opportunity for family members to participate in Medicaid planning and contribute to the financial well-being of their loved ones.

Risks of Using Promissory Notes in Medicaid Planning

When considering the benefits of using promissory notes in Medicaid planning you should also consider the risks, which could include the following:

• Regulatory Scrutiny: Improperly structured promissory notes may attract scrutiny from Medicaid authorities, potentially resulting in penalties or disqualification from benefits.
• Complexity: Medicaid planning involving promissory notes can be complex and requires careful consideration of legal and financial implications.
• Tax Implications: Transferring assets through promissory notes may have tax implications for the lender and the borrower, so it's essential to seek professional tax advice.
• Borrower Reliability: The borrower should be trustworthy, reliable, and creditworthy.  A borrower that stops making payments on the note can throw a huge monkey wrench into your Medicaid planning.   It is for this reason that I tend to prefer Medicaid-compliant annuities issued by creditworthy issuers over promissory notes signed by individual family members.

Will a Promissory Note Work for Your Medicaid Planning?

Promissory notes can be a valuable tool in your Medicaid planning process. They could allow you to transfer assets while maintaining Medicaid eligibility. However, it's crucial to navigate this strategy carefully, ensuring compliance with applicable laws and regulations.

Contact us today to talk further about gaining acceptance into the Medicaid program. We can help you determine whether including a promissory note in your planning will work for your situation. We can also can walk you through other benefits that may be available to you and help you understand how you can qualify for coverage.