In June 2017, I wrote about the combined cases of Hegadorn and Ford under the title Bloody Thursday. As discussed in that post, these combine Court of Appeals cases supported the Michigan Department of Health and Human Services conclusion that resources held in a “solely for the benefit” trust are countable assets for the purposes of determining eligibility for long term care Medicaid benefits. In other words, a long favored Medicaid planning tool was officially dead.
However, since that time the Elder Law and Disability of Rights Section of the State Bar has been working to overturn that decision. On March 7, 2018, the Michigan Supreme Court agreed to hear the case. This is a big first step, but by no means a guarantee that the SBO Trust will be revived. In fact, the Order granting leave to appeal specifically cites two issues on review: (1) whether the COA’s conclusion that the assets in an SBO trust are countable resources for Medicaid eligibility purposes is correct; and (2) whether DHHS could retroactively apply the change in policy that resulted in the denial of eligibility in these cases. Note, on this second point, DHHS has argued that they did not change policy but rather only clarified existing policy. To read the MSC Order allowing the appeal, click here.
So, the MSC could (1) affirm the COA decisions completely, (2) hold that the SBO trust is a valid planning tool and return it to use, or (3) say that the policy is fine but that it was applied unjustly in these two instances.
Those who have never accepted the demise of the SBO trust have new hope. The application for leave was written and will continue to be advocated by the pride of Ishpeming, and premier elder law attorney, James Steward. SBO believers could have no better captain at the helm.