Planning and the Aged Care Subsidy
It’s estimated that on average people under the age of 50 will spend the last 3 years of their lives in residential aged care with the present aged population spending between 1.5 years to 2 years. But who should fund this?
Not everyone will spend time in a rest home, but if they do the cost is high with a current estimated average of up to $80,000 being spent per occupant.
In New Zealand, the obligation to pay for rest home care has been means tested so that the taxpayer only covers the cost if the person needing care is judged to be poor enough to get Work and Income's Residential Care Subsidy.
The maximum subsidy for ordinary aged care is just over $1000 a week showing what a person can expect to pay as a base level if they don’t get the subsidy.
It’s been a feature of Estate planning for some years now to use family trusts, and gift away assets to descendants, to try to keep wealth in the family, and achieve relief through the Residential Care Subsidy if Rest Home Care is required.
But with growing public funding concerns surrounding an increasing life expectancy and a growing, aging population, the means test is becoming harder to meet and however carefully your estate plan is carved, it is getting more difficult to beat the system.
Work and Income is on the lookout for people who have "deprived" themselves of assets and income, and are quick to deny subsidies to people who've done it.
The way Work and Income approaches the means test is complex, so it’s important to get legal advice before trying to protect assets and in any event as early as possible before the need arises to approach Work and Income with an application.
WHAT IF YOU ACT EARLY?
Acting early to protect assets would be my number 1 recommendation. If you're looking to rearrange your assets because you are likely to go into care in the next few years, it could be too late.
The longer that a trust has been in existence, and the longer the period between the financial gifting and the time you apply for rest home subsidy, the more likely that Work and Income won't take the gifting into account when calculating your wealth.
As far as Work and Income is concerned, its mandatory to include gifts made in the five years before someone applies for subsidy when they calculate the asset means assessment so, paying for a granny flat to be added to your children’s home during the five years, for example, needs to be carefully documented as such an arrangement would come under very close scrutiny.
During the 5 year period, people can give up to $6500 away each year, and it will not be included in the asset means testing. Outside the 5 year gifting period, people can gift away up to $27,000 in any one year.
But even "allowable" gifting can still result in failing the means test.
The effect of shifting property into trusts is to "deprive” yourself of assets. If those assets are income earning assets then Work and Income may form the view that you have deprived yourself of income that would have been available to help pay for care.
In effect, while there is "allowable" gifting of assets, there is no allowable gifting of the income that can be earned from those assets.
When it comes to income, people entering aged care are allowed to keep only a weekly personal allowance from their income, plus an annual clothing allowance. The rest of their income goes to help pay the rest home bill, and reduces the subsidy Work and Income will pay.
There are rules about what income is counted in the test, but it equates to roughly everything for a single person, and half of the income of a couple where one is not going into care.
ASSETS OWNED SEPARATELY
Couples may argue that assets are not co-owned, but Work and Income is unlikely to accept that argument.
Even if the partner regards his or her assets as their own separate property, they are still included in the means assessment.
Even so called 'pre-nup agreements' can be ignored. If subject to a Property (Relationships) Act 1976 agreement, then separate property assets will still be taken into account unless the couple have separated (bona fide).
WHO PAYS IF NO SUBSIDY IS GIVEN
If the subsidy application is declined, family or family trusts will have to pay. This use of funds may be inconsistent with the terms of the family trust, thus opening a whole new can of worms.
THINGS TO WATCH OUT FOR IN ASSET PLANNING
While every single case is reviewed on its own merits, arrangements Work and Income are unlikely to accept, include where people:
There may be no way around making a contribution to yours or your family’s residential care but if you want to know if there is in your circumstances get legal and accounting advice as soon as possible.
Note from the Author
I get plenty of time to think about legal matters while I am on the road.
This blog shares those thoughts and also answers some of the many questions people ask me. Hopefully there is something of interest to you. If there is a subject you would like covered then let me know!
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