Massachusetts Lawyers Weekly recently interviewed Atty. David J. Correira regarding two Massachusetts Supreme Judicial Court rulings on the treatment of irrevocable trusts in the context of Medicaid qualification. Those cases, Nadeau and Daley, have sent waves through the elder law bar, as many attorneys have found their trusts being “undone” by MassHealth. However, as Atty. Correira emphasized, so long as an irrevocable Medicaid trust is drafted and administered properly, clients should overcome any challenges by MassHealth.

From the article: “‘Just because these two cases were decided doesn’t mean certain trusts still won’t have issues or that certain advocacy isn’t going to be inadequate at the administrative hearing level,’ [Atty. David J. Correira] said. ‘I think MassHealth will continue to be aggressive in challenging gifts, transfers, and trusts. I don’t see how they’re not going to be. If they challenge 10 trusts and two families throw up their hands, that’s easily $500,000 to the state that they otherwise won’t get . . . [Still] Correira said that given the likelihood of MassHealth continuing to challenge trusts on every ground it can find, attorneys will need to handle Medicaid applications as if they are in litigation stance from the start. That includes preparing memoranda to attach to applications, citing all relevant case law, and making sure the trusts themselves are drafted flawlessly. ‘This decision just says that if properly drafted, these trusts are effective,’ Correira said. ‘Well, that’s nothing they weren’t saying 20 years ago. But many elder law attorneys are not per se trust and estate attorneys, and they may not have litigation as part of their practice.'”

For the full article, click here.