Public Benefits
§ 12.1Public Benefits Potentially Available to Wards
For many individuals suffering from disabilities, public benefits provide the main source of income and medical care. Guardians should not overlook the availability of these benefits. A multitude of public benefits programs are available for individuals with a disability that can be accessed during the guardianship process to support the ward. These public benefits programs can be divided into two groups: non-means-tested programs and means-tested programs. An understanding of these programs is necessary to maximize the benefits that may be available to a ward and his estate.
Non-means-tested programs contain no resource or income limitations in determining eligibility for the program. Non-means-tested programs include Social Security Disability Insurance (SSDI), Social Security retirement and survivor’s benefits, as well as benefits for adult children with disabilities, and Medicare. Programs that are available regardless of a ward’s financial situation are discussed in more detail at sections 12.2:1 through 12.2:5 below.
Means-tested programs present income or resource limitations to potential recipients. The most common means-tested programs are Supplemental Security Income (SSI) and Medicaid. These programs are discussed in more detail at sections 12.3:1 and 12.3:2 below.
Housing benefits from the U.S. Department of Housing and Urban Development (HUD), administered by public housing authorities across the state, and nutritional benefits through the Supplemental Nutrition Assistance Program (SNAP) can also provide significant benefits to a ward and should not be overlooked.
Finally, an array of benefits from the Department of Veterans Affairs, including service-connected compensation and non-service-connected pension benefits, sometimes increased due to a veteran’s or widowed spouse’s housebound status or need for the assistance of a third party, can provide a stream of income to offset care expenses. These programs are discussed in more detail at sections 12.4 through 12.4:7 below.
§ 12.2Non-Means-Tested Public Benefits
§ 12.2:1Social Security Disability Insurance (SSDI)
The Social Security Disability Insurance (SSDI) program is a monthly cash assistance benefit provided through the Social Security Administration (SSA). SSDI is not based on income or resource restrictions. Rather, it is available for wards who (1) are disabled and (2) have made sufficient contributions to Social Security through the payment of employment taxes during their work lives.
To receive SSDI benefits, a ward must meet the definition of a disabled person under SSA rules. An adult ward is considered disabled for SSDI purposes if he “is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905.
A ward must meet certain eligibility requirements to qualify for SSDI, including contributing to the Social Security program for at least twenty of the forty preceding work quarters. A ward may be eligible with less work history if he is disabled and under the age of thirty-one or if he is disabled due to blindness. 20 C.F.R. §§ 404.110, 404.120, 404.130.
The amount of the monthly SSDI benefit varies depending on the work history of the ward. The calculation of the monthly amount also considers the age and total contributions of the ward. Importantly, once a ward has received SSDI payments for twenty-four months, he becomes eligible for Medicare benefits. If the ward suffers from amyotrophic lateral sclerosis (ALS) or kidney failure, the twenty-four-month waiting period does not apply.
§ 12.2:2Social Security Retirement Benefits
The Social Security retirement program, originally enacted in 1935, provides the largest source of income to retired individuals in the United States. The Social Security retirement program is not based on income or resource restrictions.
When it was originally enacted, Social Security was the first pension program established by the federal government. The Social Security retirement program is funded though the payment of Federal Insurance Contribution Act (FICA) taxes deducted from a worker’s paycheck.
To be eligible for Social Security retirement benefits, a ward must have been credited a sufficient amount of quarters and must also have reached a minimum retirement age. The minimum age to receive Social Security retirement benefits is sixty-two. However, wards retiring at age sixty-two will not receive the full monthly benefit. Even if a ward retires at sixty-two, he will not be eligible for Medicare until age sixty-five. If a ward retires at age sixty-two, his benefit will be reduced by approximately 30 percent each month. The current retirement age for full benefits is between sixty-five and sixty-seven, depending on the individual’s year of birth. For a chart outlining the retirement ages for each birth year, see 20 C.F.R. § 404.409.
An eligible ward has the option of a delayed retirement until age seventy. If delayed participation is elected, the amount of the benefit will increase each month that the participant delays retirement until age seventy. Currently, the rate of increase is 8 percent per year worked after full retirement age. See 42 U.S.C. § 402; 20 C.F.R. § 404.313.
In addition to meeting the age requirement, a ward is required to have been credited with at least forty quarters of reported earned income. 42 U.S.C. § 414(a)(2); 20 C.F.R. §§ 404.110(b)(1), 404.115.
A ward is able to earn a maximum of four quarters of work per year. In 1978, Social Security amended the way quarters were reported, requiring employers to report only annual income rather than report income earned quarterly. In 2022, as long as a worker earns at least $6,040 (or $1,510 per quarter) annually, whether received in one quarter or throughout the entire year, the worker will receive the maximum four work credits. See www.ssa.gov/benefits/retirement/planner/credits.html.
In addition to eligibility for the retired ward, in certain circumstances spouses, descendants, and parents may also be eligible for Social Security benefits on an individual’s work record.
§ 12.2:3Social Security Survivor Benefits
Upon the death of a worker, certain classes of individuals may be entitled to collect survivor benefits based on the deceased worker’s earning record. These classes include surviving spouses, children, and parents of deceased workers. Each class has different age and eligibility requirements. Additionally, a surviving spouse or child may qualify for a lump-sum death benefit of $255. Social Security survivor benefits are not based on income or resource restrictions.
A ward who qualifies as a surviving spouse may be entitled to collect “widow” or “widowers” benefits. The ward and his deceased spouse must have been married for at least nine months, unless the death of the spouse was accidental or unexpected. There is no length-of-marriage requirement if the couple has a child under age eighteen. To receive benefits, the ward must be age sixty or over, or at least age fifty if the spouse is disabled, though a spouse is subject to the same early claim reductions that are imposed on a worker who draws retirement benefits before full retirement age. 20 C.F.R. § 404.335. In addition, a divorced surviving spouse may be entitled to receive survivor benefits. 20 C.F.R. § 404.336. Multiple widows and former spouses can draw on the same worker’s record without impacting the benefits of the others.
A ward who qualifies as an unmarried dependent child, either natural, adopted, or step, is entitled to receive 75 percent of the worker’s benefits if the ward is under age eighteen. Once the ward reaches age eighteen (nineteen if the ward is a student), the benefits cease unless the ward is disabled. 20 C.F.R. §§ 404.350–.354.
A ward who is the parent of a worker also may be able to receive a survivor benefit if the ward has reached age sixty-two and, before the worker’s death, was receiving support from the worker equal to at least one-half of the ward’s ordinary living costs. In addition, the ward’s income must be one-half or less of the amount of the ward’s ordinary living costs. The support of the ward must have continued for a reasonable period of time (generally twelve months before the death of the worker).
If a ward, either as a surviving spouse or parent, is entitled to receive a larger benefit based on his own work record, he will not be eligible to receive a survivor benefit.
§ 12.2:4Social Security Adult Disabled Child Benefits
If a ward is disabled before age twenty-two and remains disabled, the ward will be eligible for adult disabled child benefits for as long as the ward is disabled. These benefits are not considered disability benefits under SSI or SSDI. If the amount received as an adult disabled child is below the SSI income limit, the child may also be eligible to receive SSI benefits. The receipt of adult disabled child benefits does not cause an interruption of Medicaid benefits as long as the child is otherwise eligible for Medicaid. These benefits are not based on income or resource restrictions.
Medicare is the primary health insurance program for the elderly population of the United States. The program is administered by the Centers for Medicare and Medicaid Services (CMS) and the Social Security Administration. Medicare is not based on income or resource restrictions, though copays for Medicare Part B are higher for higher-income recipients.
Medicare is a federal health insurance program available to individuals who—
1.meet the disability or age (sixty-five or older) requirements of the program;
2.have paid money into the program through retirement tax payment or have become eligible to receive SSDI or Railroad Retirement Disability benefits; or
3.who have end-stage renal disease.
42 U.S.C. §§ 402, 426 to 426–1.
Medicare Benefits: Medicare is divided into Part A, which consists of hospital and limited nursing home benefits (limited to short-term rehabilitation), and Part B, which consists of physicians, tests, medical equipment, and so forth. Effective January 1, 1998, a new Part C, now generally referred to as Medicare Advantage, was introduced to allow Medicare beneficiaries the ability to elect various combinations of managed care and private-pay services. Part C serves as an alternative to traditional Medicare, and the benefits associated with a Medicare Advantage plan differ.
Medicare Part D became effective January 1, 2006, to offer prescription drug coverage to Medicare beneficiaries.
Medicare pays only for medical goods and services that are reasonably necessary to improve the functioning of the Medicare recipient. Experimental procedures, even though reasonable and necessary, may not be covered under Medicare. Medicare will pay for up to sixty days of acute hospital care per spell of illness, which may be extended for an additional ninety days provided the ward requires acute care. A “spell of illness” is a defined period for Medicare. The spell of illness begins on the first day the ward enters the hospital and begins receiving Part A benefits and ends after a sixty-day period during which no benefits are paid under Part A.
Enrollment in Medicare: Coverage through the Medicare program is automatic when payments have been contributed to the program from the qualifying ward’s own income or that of the ward’s spouse or parent, as is the case with dependent children or survivor coverage. A ward is automatically enrolled in Medicare in certain circumstances, including when—
1.he is already receiving Social Security or Railroad Retirement at age sixty-five; or
2.he has received SSDI or Retirement, Survivors, and Disability Insurance benefits for twenty-four months.
See 42 U.S.C. § 426.
If the Medicare card does not arrive after one of the triggering events above, the guardian should contact the ward’s local Social Security office. If the application is not filed within certain time periods, eligibility may be lost or there may be a penalty for failure to apply for Medicare benefits.
Medicare eligibility rules provide a special enrollment period for a participant who continues to work until after age sixty-five and who is enrolled in his employer’s group health plan. The special enrollment period covers each month that the ward is currently employed and covered under a group health plan and continues for eight months after the employment terminates.
Medicare Premiums: Most wards enrolled in Medicare are not required to pay the Part A premium, which is up to $499 (for 2022). The standard Part B premium is $170.10 (for 2022). Note that if a ward has a higher income, his Part B premium will increase above the base premium. See www.medicare.gov/your-medicare-costs/. The Part B premium is determined on an annual basis and fluctuates each year. Wards over age sixty-five not otherwise eligible for the Medicare program may voluntarily purchase both Part A and Part B by applying and paying the applicable premium.
Since Part B premiums are determined on an actuarially sound basis for enrollees, late enrollees to Medicare Part B are assessed a surcharge for late enrollment into the program. The actuarial rate is the amount necessary to pay one-half of the benefits and the administrative costs for Medicare for the calendar year. The other one-half necessary to pay benefits and administrative costs is contributed by the federal government. The Part B premium is determined on an annual basis and fluctuates each year. The Part B surcharge increases the monthly Part B premium by 10 percent for each twelve-month period in which a ward could have been enrolled in Medicare Part B but was not. Previous periods of employment in which a ward was covered under a group health plan are disregarded.
Medicare Supplement Policies: Medicare Supplement policies, also sometimes referred to as “Medigap” policies, are insurance policies through private insurance companies designed to supplement the benefits provided by Medicare by paying some of the amounts that Medicare does not pay. Benefits of a Medicare Supplement policy include Medicare deductibles and other coinsurance costs. For example, most Medicare Supplement policies cover the copayment for days twenty-one through one hundred of skilled nursing care.
Medicare Supplement policies have an open enrollment period, during which companies must allow potential enrollees free choice of the plans that they offer and cannot refuse coverage. The open enrollment is six months from the enrollment in Medicare Part B.
Medicare Supplement policies are required to offer certain basic benefits to participants. These basic benefits, sometimes referred to as the “core” benefits, are included in all Medicare Supplement policies. The core benefits are—
1.hospitalization copayments for days sixty-one through ninety and sixty lifetime days paid under Part A;
2.the costs for the first three pints of blood;
3.the 20 percent copayment for Medicare-approved procedures paid under Part B; and
4.100 percent of the hospice Part A coinsurance.
See 42 U.S.C. § 1395ss(o).
The basic coverage is quite minimal, so guardians who wish to purchase a Medicare Supplement policy for a ward should include coverage for skilled nursing and other essential coverage, such as coverage in a foreign country, that is not covered by the basic plan.
§ 12.3Means-Tested Public Benefits
§ 12.3:1Supplemental Security Income (SSI)
Supplemental Security Income (SSI) is a means-tested monthly cash assistance program intended to help pay for the costs of a ward’s food and shelter. 42 U.S.C. §§ 1381–1385. As such, the benefits are designed to augment the income or assistance otherwise available to the aged (age sixty-five or over) or blind or disabled ward (as determined by the Social Security Administration), including children, who meet the income and resource restrictions of the program. The full amount of the SSI benefits is $841 (in 2022). However, this amount may be reduced by the receipt of income by the ward, received either in cash or as in-kind support and maintenance.
In Texas, once a ward qualifies for SSI benefits, the ward is automatically eligible for Medicaid benefits. The Medicaid benefits program is often more beneficial than any cash payment received from SSI since the Medicaid program provides comprehensive medical coverage. If a ward in Texas receives one dollar or more of SSI benefits, the ward automatically qualifies for Medicaid.
SSI Income Limits: “Income” for SSI purposes is generally anything the ward receives in cash or in-kind support and maintenance that can be used to meet the ward’s needs for food and shelter. 20 C.F.R. §§ 416.1110–.1182. The definition includes gifts and certain distributions from trusts. The receipt of unearned income causes a dollar-for-dollar reduction in the SSI benefit, after disregarding the first $20 per month of unearned income. The receipt of earned income causes a reduction of $1 of SSI benefit for every $2 earned (or a reduction of 50 percent of earned income), after disregarding the first $65 per month of earned income.
In addition to cash received by the ward, income also includes the payment of food and shelter expenses for the ward by a third party. This includes payments made by trusts and third parties, such as parents. However, there are two rules regarding the receipt of in-kind support and maintenance, the One-Third Reduction Rule and the Presumed Maximum Value rule, which limit the reduction of SSI benefits to a certain amount ($300.33 in 2022). See Understanding Supplemental Security Income Living Arrangements, www.ssa.gov/ssi/text-living-ussi.htm.
Practice Pointer: Note that payments to a store selling groceries and other items does not automatically disqualify someone from SSI. Careful records keeping can show the items purchased at such a store are entirely allowable under SSI rules.
Medicaid is a means-tested, federally funded, state-administered health insurance plan available to wards who meet certain eligibility requirements. “Medicaid” is the term used to refer to government health insurance programs that provide medical care and services to indigent (poverty level) wards pursuant to title XIX of the Social Security Act. 42 U.S.C. §§ 1396– 1396w-5. To be eligible for Medicaid benefits, a ward must meet certain income and resource restrictions. Since the Medicaid program is funded with federal funds, the state’s Medicaid eligibility requirements are based on federal law and are similar to the requirements for SSI eligibility. In Texas, the Medicaid program is administered by the Texas Health and Human Services Commission (HHSC). While each state has some latitude to establish its own rules and regulations concerning Medicaid eligibility, such regulations cannot be more restrictive than the federal laws and guidelines.
Following are some of the long-term care programs available in Texas under the state’s Medi-caid program:
Institutionalized Programs: provide nursing home institutionalized care for elderly and disabled wards.
Personal Attendant Services: provide attendant care services to assist wards with activities of daily living as well as light housekeeping and meal preparation. Such programs include the Community Attendant Services (CAS), the Primary Home Care Program, and the Family Care Program.
Emergency Medicaid for Undocumented Immigrants: allows for the treatment of undocumented immigrant wards for the duration of their emergency condition.
Medicaid Waiver Programs: offer full Medicaid coverage and in-home services as a more cost-effective alternative to institutionalized care. Waiver programs include STAR+PLUS Home and Community Based Waiver (formerly known as the Community Based Alternatives (CBA)) program), Community Living and Support Services (CLASS), Medically Dependent Children’s Program (MDCP), Deaf, Blind, Multiple Disability Waiver (DBMD), Home and Community Based Services (HCS), Texas Home Living Waiver (Tx/HmL), and Integrated Care Management programs. (Because of the popularity of the Waiver programs, these programs are often subject to a lengthy wait or “interest” list for the benefit. For example, the interest list for the CLASS program is approximately ten years in Houston and twelve years in San Antonio. The interest list varies in length from region to region.)
Deemed SSI Programs: Medicaid-mandated under federal law to provide continuing coverage for those wards who lose SSI as a result of a COLA increase for a different SSA program. These SSA programs include SSDI and the Disabled Adult Child (DAC) benefit.
Community Medicaid: provides comprehensive medical assistance that pays for doctor’s visits, hospital stays, prescription drugs, and adaptive aids for wards not living in nursing homes.
Medicare Savings Programs: assist with the payment of premiums and deductibles associated with the Medicare program for low-income wards. Such programs include the Qualified Medicare Beneficiary Program (QMB) and the Specified Low-Income Medicare Beneficiary Program (SLMB).
Often the Medicaid program is the only source of health coverage available to a ward with disabilities, and the loss of such benefits can result in the loss of medical care for the ward.
Medicaid Eligibility: To be eligible to receive Medicaid long-term care benefits, the ward must meet certain categorical requirements as well as strict income and resource limitations. Failure to meet one of the requirements will result in either the denial or loss of Medicaid benefits.
To be eligible for Medicaid benefits, the ward must be either a U.S. citizen or qualified resident alien. 1 Tex. Admin. Code § 358.203. Simply having a permanent residency card is not enough to qualify as a resident alien for Medicaid eligibility purposes.
In determining whether a ward is a qualified resident alien, the date the ward entered the United States is important. Wards who entered the United States before August 22, 1996, and who have continuously resided in the United States must meet the definition of qualified alien as provided at 8 U.S.C. § 1641.
Wards who entered on or after August 22, 1996, must also meet the definition of qualified alien as provided at 8 U.S.C. § 1641 along with the eligibility limitations found in 8 U.S.C. §§ 1612, 1613. Qualified aliens are immigrant wards who have been lawfully admitted to the United States for permanent residence, refugees, or asylees. Qualified aliens also include immigrant wards who have had their deportation withheld, have been granted parole, have been granted conditional entry, or who are battered spouses. See Texas Health and Human Services Commission, Medicaid for the Elderly and People with Disabilities Handbook ch. D-8000, Alien Status, https://hhs.texas.gov/handbooks/medicaid-elderly-people-disabilities-handbook (MEPD). Some qualified aliens may be subject to a waiting period of five years if they entered the United States on or after August 22, 1996, or may be limited to benefits for a maximum of seven years. See MEPD §§ D-8300–8330.
To qualify for Texas Medicaid, the ward must be a resident of Texas. To meet the residency requirement, the ward must have established residence in Texas and possess an intent to remain in Texas. 1 Tex. Admin. Code § 358.207. No length of time to establish residency is required. Additionally, travel outside the state does not automatically terminate residency as long as the ward has the intent to return to Texas. Note, however, that absence from the country for a full calendar month or thirty consecutive days will disqualify a recipient from SSI qualification, so if Medicaid qualification is based on SSI qualification, Medicaid benefits will also be lost. 20 C.F.R. § 416.215; Social Security Administration Program Operations Manual SI System 00501.410.
If the guardian is seeking nursing home care for a ward, the ward must be either age sixty-five or older, blind, or disabled (pursuant to the definition of disability by the Social Security Administration). 1 Tex. Admin. Code § 358.211. In practice, this requirement is rarely an issue, because the “medical necessity” requirement, discussed below, is more stringent than the disability requirement. The disability requirement becomes an issue if a ward under age sixty-five applies for nursing home Medicaid and has not been deemed disabled by the SSA.
For nursing home and waiver programs, the ward must meet the “medical necessity” requirement. 26 Tex. Admin. Code § 554.2403. The initial assessment of medical necessity is made upon admission to the nursing home, and a follow-up assessment is done annually. The assessment is usually completed by the director of nursing at the nursing home and by a nurse and physician employed by the insurance company contracted by HHSC. If it is determined that the ward does not meet medical necessity, the guardian may appeal the decision through a fair hearing.
Essentially, medical necessity requires a medical disorder or disease requiring attention by a registered or licensed vocational nurse on a regular basis. Inability to attend to “activities of daily living,” such as bathing, grooming, dressing, and eating, is not sufficient to meet medical necessity. The ward must need skilled nursing rather than simply custodial care. 26 Tex. Admin. Code § 554.2401.
To be eligible for nursing home Medicaid, the ward must reside in a Medicaid facility in a Medicaid-certified bed. While this requirement seems straightforward, not all facilities that accept Medicaid have Medicaid beds available at any given time. Many facilities have waiting lists for Medicaid beds. If the ward resides in a Medicaid facility but is not placed in a Medicaid-certified bed, Medicaid will not pay for the nursing home.
Medicaid Income Limits: The income limits for a ward seeking Medicaid qualification depend on the marital status of the ward and whether the ward’s spouse is also applying for Medicaid benefits. However, if a ward exceeds his applicable income limit, his guardian may create a Qualified Income Trust (QIT), also referred to as a “Miller Trust,” to meet the income requirement. See section 12.5:1 below for further discussion. The income limit changes on January 1 each year to reflect any cost of living increases given by Social Security.
For an unmarried ward to be eligible for Medicaid, he can have no more than $2,523 (in 2022) per month in countable income. For a married couple with an ineligible spouse, the income cap for the applicant-spouse is the same as for an unmarried person ($2,523 per person per month in 2022). When determining whether the ward-spouse meets the income cap, apportionment of income is critical. This situation arises either in a spousal impoverishment case, in which one spouse enters a facility and the other remains in the community, or when both spouses enter a nursing home but only one spouse is applying for Medicaid benefits. Income is apportioned to the spouse in whose name the income is received (i.e., the “name on the check”).
If both spouses reside in the nursing home and both are applying for Medicaid, the incomes of both spouses are combined. The income cap for both spouses applying for Medicaid is $5,046 (in 2022), or twice the unmarried ward limit. MEPD app. XII. If the combined income of both spouses exceeds this cap, a QIT may also be used.
Practice Pointer: It is important to remember that a ward’s gross income, not net income, determines whether a QIT is needed. Note that deductions for items such as health insurance, federal income taxes, and other retirement benefits are deducted from income before receipt. For example, the Medicaid Part B premium is deducted from a ward’s monthly Social Security benefit. The guardian must obtain an award letter from the pension source or SSA before determining whether a QIT is necessary for eligibility. When gathering documents, make sure to obtain the most recent Social Security statements. If a guardian is attempting to expand the spousal protected resource amount (SPRA), knowing the exact amount of income is crucial.
Medicaid Resources: For purposes of determining Medicaid eligibility, resources are cash, other liquid assets, or any real or personal property or other nonliquid assets that a ward, a ward’s spouse, or a ward’s parent could convert to cash to be used for the ward’s support and maintenance. The value of a ward’s resources is determined as of 12:01 a.m. on the first day of each month. 1 Tex. Admin. Code § 358.321.
Note that support and maintenance assistance are not considered a resource. MEPD ch. F. Certain resources are not considered when determining Medicaid eligibility. Examples of excluded resources are the homestead, a vehicle, retirement accounts such as an IRA, 401(k), and 403(b) plans, burial funds, preneed funeral contracts, burial items, limited amounts of life insurance (face value less than $1,500), personal effects, and business property. See MEPD § F-1100.
Practice Pointer: To be considered a countable resource, the resource must be owned either solely or in part by the ward and be accessible. MEPD § F-1220. An asset is considered an accessible resource if the ward has the right, authority, or power to liquidate the property or his share of the property. An individual’s resources are available to the individual if they are being managed by a legal guardian, representative payee, agent under a power of attorney, or fiduciary agent, but if a court denies a guardian or agent access to the resources, HHSC does not consider the resources to be available to the individual. MEPD § F-1231. Resources held under a guardianship carry a presumption of being accessible unless specifically denied access by a court. Henson v. Texas Health & Human Services Commission, No. 03-13-00621-CV, 2015 WL 6830677 (Tex. App.—Austin Nov. 5, 2015, no pet.).
Practice Pointer: Note that the HHSC has not codified any rules for the exemption of retirement accounts. However, the HHSC has previously indicated the following regarding retirement accounts: for individuals who are receiving Required Minimum Distributions (RMDs), IRAs are excluded from countable resources. The same policy applies both to applicants and to their community spouses. Annuities held within IRAs will continue to be treated as exempt. For those with 401(k)s, TSAs, and other types of retirement accounts, exemption requires first rolling over the assets to an IRA. If there is an RMD, the account then becomes exempt; if not, it can then be made exempt by purchasing a deferred annuity within the IRA. RMDs are counted as income for both eligibility and copayment.
Medicaid Resource Limits: The countable resource limit for an unmarried ward is $2,000 of countable resources. MEPD § F-1300. This amount has not changed since 1989.
Under the spousal impoverishment rules, if one spouse resides in a nursing home and the other remains in the community, the resource limit is determined based on the couple’s combined resources subject to the Spousal Protected Resource Amount (SPRA). The amount of countable resources allowed in this situation is a range between the minimum SPRA of $27,480 (in 2022) and the maximum SPRA of $137,400 (in 2022). MEPD app. XII. In some cases the amount of countable resources may exceed the maximum SPRA of $137,400 if the couple’s combined gross income is less than the minimum monthly maintenance needs allowance (MMMNA) ($2,288.75 in 2022), which is the amount of gross monthly income the spouse is allowed to keep for his or her support in the community. See MEPD ch. J. The minimum and maximum SPRA are increased on January 1 each year. Note that some states, including Texas, set their own standard figure for the MMMNA, which in Texas is $3,435. See www.medicaidplanningassistance.org/mmmna-definition/.
The countable resource limit for a married couple, both of whom reside in the nursing home and are applying for benefits, is $3,000 of countable resources. The resources of both spouses are combined to determine whether the limit is reached. If both spouses reside in the nursing home, the spousal impoverishment rules do not apply.
If both spouses reside in a nursing home and only one spouse is applying for Medicaid benefits, the countable resource limit for the spouse applying for Medicaid is $2,000. Resources of the nonapplicant spouse are not deemed to the ward-spouse because they are not considered as living in the same household. MEPD § F-1300. Therefore, the nonapplicant spouse can have unlimited resources in his or her name.
Practice Pointer: COVID-19 stimulus payments made to Medicaid recipients during the 2020 and 2021 calendar years are not considered resources or income for the Medicaid recipient unless the funds remain unspent for a period of twelve months. Unspent funds will be counted as an asset and may impact future eligibility. See www.medicaidplanningassistance.org/covid-19-stimulus-checks-impact/.
§ 12.3:3Considerations for Calculating Income
The Pickle Amendment allows recipients of SSI/Medicaid who also receive SSDI benefits to retain their Medicaid eligibility if such recipients receive a cost of living adjustment (COLA) on the SSDI amount that would push them over the SSI income limit, thereby disqualifying them from SSI. Pickle disregards the increase in SSDI. In a year in which there is no COLA for SSDI, the Pickle rules do not apply. See MEPD § A-2330.
For the years 2010 and 2011, there was no COLA increase for SSDI recipients, so wards whose SSDI amount pushed them over in those years were denied Medicaid benefits automatically. There have been COLA increases each year since 2012 (other than 2016), most recently a 5.9 percent increase in 2022, and therefore the Pickle rules have been in effect since then.
§ 12.3:4Compassionate Allowances
If a ward suffers from certain conditions, Social Security will prioritize applicants to ensure that those with the most serious medical conditions do not suffer unnecessary delay in the processing of the application for benefits. Compassionate Allowances is not a separate program from Social Security disability benefits but is a mechanism for identifying the most medically needy applicants. The current list of Compassionate Allowances can be found at www.ssa.gov/compassionateallowances/conditions.htm. If a ward suffers from one of the diseases on the Compassionate Allowances list, Social Security expedites his application for benefits. This means that in certain circumstances the application for benefits may be approved in as little as two weeks.
§ 12.4Department of Veterans Affairs Benefits
Wards who are veterans who meet certain eligibility requirements may be entitled to either service-connected disability compensation or pension payments for non-service-connected disabilities from the Department of Veterans Affairs (VA). Veteran wards are also entitled to special monthly payments known as Aid and Attendance as well as health care provided by the VA health-care system, burial benefits, and survivor benefits. Widowed spouses of veterans may also qualify for some of these benefits. Special considerations for guardianships of veterans and their dependents are discussed in chapter 5 of this manual.
The VA runs the largest health-care network in the country. The VA provides numerous health-care services to wards who qualify as eligible veterans, including basic care, inpatient and outpatient care, emergency care, and comprehensive rehabilitative services. See 38 C.F.R. § 17.38.
To be eligible for VA health-care benefits, the ward must have been in active military service, a National Guard member, or a reservist and had a discharge other than dishonorable. The ward must also meet financial eligibility requirements and complete an enrollment form. A ward is financially eligible if the ward’s net worth is below the VA’s national means threshold, which differs based on geographical location.
Eligible wards along with all veterans are assigned a priority status of VA health-care services, with veterans having a service-connected disability of more than 50 percent receiving the highest status. Health-care benefits include preventive care services, ambulatory (outpatient) diagnostic and treatment services, hospital (inpatient) diagnostic and treatment services, medication, and supplies.
In addition to the above benefits, eligible wards may also be entitled to nursing home care in federal VA facilities, state-run veterans’ homes, or community nursing home programs. The nine Texas Veterans’ Homes, which are operated by the Texas Veterans Land Board, are located in Houston, Temple, Floresville, Big Spring, Bonham, Amarillo, El Paso, Tyler, and McAllen. These homes were initially financed by the VA and private payment. However, under a mandate of the Texas legislature in 2001, the homes have all been granted certification as Medicaid providers. Texas Veterans’ Homes are open to eligible veterans, spouses, unmarried surviving spouses, and “gold star parents” (defined as parents whose children have died while serving in the U.S. Armed Forces).
§ 12.4:2VA Service-Connected Disability Compensation
Service-connected disability compensation is a monthly cash payment to disabled veteran wards. In addition to the monthly cash payment, eligible wards are entitled to priority health care provided by the VA. To be eligible for service-connected disability compensation, the ward must meet the following requirements:
1.the ward’s disability must result from an injury or illness contracted during an active-duty service-connected illness or injury, which can include the aggravation of a preexisting condition that was aggravated during active duty;
2.the ward was discharged from service with other than dishonorable discharge; and
3.the injury must not result from the ward’s “willful misconduct or abuse of alcohol or drugs.”
See 38 U.S.C. § 1110.
Wards eligible for service-connected disability compensation are entitled to a monthly payment from the VA based on the ward’s disability rating. 38 C.F.R. § 4.1. A ward’s disability rating is the degree to which the disability would impair the ability of an average citizen to earn a living. Each ward eligible for service-connected disability compensation is assigned a disability rating from 0 percent to 100 percent. (Note: wards who are eligible for benefits and are permanently disabled and unable to work will be assigned a disability rating of 100 percent.) Monthly cash payments to wards are received tax-free and receive protection from wards’ creditors.
§ 12.4:3VA Low-Income Disability Payments
Low-income disability payments, referred to as non-service-connected disability pension, are provided to wards who qualify as disabled veterans and certain wards who qualify as surviving spouses of veterans, on a needs-based determination. In addition to meeting the service requirements of ninety consecutive days’ active duty, one of which was during a wartime period, to be eligible for non-service-connected disability pension a ward who is a veteran or the widowed spouse of a veteran must satisfy the following requirements:
1.the applicant must meet net-worth limitations ($138,489 in 2022), comprising countable assets and annualized income, reduced by out-of-pocket medical expenses;
2.the applicant must suffer from a total and permanent disability (i.e., have a 100 percent disability rating); and
3.the disability cannot be the result of the applicant’s own willful misconduct.
See 38 U.S.C. §§ 1521, 1522.
Note that the VA considers every veteran who is over age sixty-five to be completely disabled. This is significant because many guardians are unaware that their wards could potentially be eligible for non-service-connected disability benefits in addition to Medicaid long-term-care benefits.
A veteran eligible to receive non-service-connected disability pension will receive a monthly cash payment based on the level of care needed by the veteran and the number of the veteran’s dependents. When a veteran without a spouse or dependent child qualifies for Medicaid and enters a nursing home or a domiciliary facility operated by the VA, the amount of the pension is reduced to $90 per month. 38 U.S.C. § 5503. This $90 pension payment is not counted by Medicaid as includable income or used in calculating the copayment amount.
To qualify for pension payments, the net worth of the veteran or widowed spouse must not exceed the applicable limit ($138,489 in 2022). See 38 C.F.R. § 3.274(b)(1). This includes all countable resources (not including the primary residence, vehicles necessary for the family’s transportation, and personal effects) as well as annual income. Note, however, that income is reduced by unreimbursed medical expenses. 38 C.F.R. § 3.278(a).
For purposes of pension eligibility, income includes recurring income; irregular income; salary payments; income from a business, farm, or professional endeavor; income from property, including rental income; and installment income. In addition to the above sources of income, payments received from the U.S. Department of Labor, Office of Workers’ Compensation Programs, Social Security Administration, or Railroad Retirement Board or payments from any workers’ compensation board or employers’ liability statute or for any damages collected as a result of personal injury or death, shall be counted as income. 38 C.F.R. § 3.271. There are some exclusions from income. See 38 C.F.R. § 3.272.
One of the most significant changes to the rules, which became effective October 2018, is the imposition of a penalty for transfers of “covered assets” within thirty-six months before the application for benefits. The penalty is calculated by dividing the amount of the transfer by the monthly benefit rate for a married veteran in need of aid and attendance ($2,431 in 2022) and rounding down to the nearest whole number. 38 C.F.R. § 3.276(e)(1). The result is the total number of months of the penalty period, provided, however, that the penalty will not exceed five years. 38 C.F.R. § 3.276(e). The penalty period begins on the first day of the month following the date of the transfer. 38 C.F.R. § 3.276(e)(2).
§ 12.4:4VA Special Monthly Payments: Aid and Attendance
In addition to the regular disability compensation and pension payments discussed above, certain classes of veteran wards may also be eligible for special monthly payments. These payments are for regular aid and attendance and for housebound veteran wards.
Veteran wards who are unable to perform activities of daily living (such as bathing, dressing, and toileting) without assistance are entitled to receive additional aid and attendance benefits. See 38 U.S.C. § 1114(r). It is not required that a ward be 100 percent disabled to receive these benefits, but as a practical matter nearly all wards who do receive such benefits are 100 percent disabled.
Practice Pointer: For Texas Medicaid purposes, VA aid and attendance payments are not included in countable income to the extent they exceed the basic disability payment received by the ward. Moreover, none of the aid and attendance payments ($90 for individuals receiving Medicaid benefits) should be included in determining whether a ward needs a Qualified Income Trust. The rationale behind such a rule is that aid and attendance payments are considered payments by third-party insurance.
§ 12.4:5VA Special Monthly Payments: Housebound Allowance
Similar to aid and attendance payments, veteran wards who are permanently housebound and who meet the requirements for non-service-connected disability compensation are entitled to an additional payment, called a housebound allowance. The ward must be reasonably certain to remain housebound for the remainder of the ward’s life. See 38 U.S.C. § 1114(s). As with aid and attendance payments, the payment for housebound allowance is computed based on the dollar amount needed by the ward because of health-care needs and the family situation. 38 U.S.C. § 1114(s).
Essentially, the housebound allowance is an intermediate level of care and payments between the basic pension and a pension enhanced for aid and attendance. Additionally, payments received as a housebound allowance are not included in determining the ward’s income for Medicaid eligibility purposes. A veteran cannot receive both the aid and attendance payment and the housebound allowance.
§ 12.4:6VA Survivors’ Benefits
Dependency and Indemnity Compensation (DIC) monthly cash payments are available for certain classes of survivors of deceased veterans who died while on active duty, active duty for training, or inactive duty or as the result of a service-connected disability incurred after September 15, 1940. 38 U.S.C. §§ 1312, 1311.
Surviving spouses, unmarried children under the age of eighteen, disabled children, and children between the ages of eighteen and twenty-three who are enrolled in VA-approved schools are eligible to receive DIC payments. Additionally, low-income parents of deceased veterans may be entitled to receive a DIC payment. 38 C.F.R. § 3.4(c).
In addition to the monthly DIC cash payments, individual recipients of DIC benefits may be entitled to receive aid and attendance payments or housebound allowances. DIC recipients will be entitled to aid and attendance if they are residents of a nursing home or require the regular assistance of another individual with the activities of daily living.
Veterans and their spouses, dependents, and minor children are eligible to be buried in a VA cemetery. Currently, there are 155 VA cemeteries nationwide. Other burial benefits include the opening and closing of the grave and perpetual care. In addition to burial space in a VA cemetery, veterans and their spouses may be eligible for financial assistance in paying for funeral expenses.
§ 12.5Planning Options for Accessing Public Benefits in Guardianship Proceeding
§ 12.5:1Qualified Income Trust/Miller Trust
In Texas, the monthly income cap to determine Medicaid eligibility for an unmarried individual is $2,523 (in 2022) and $5,046 for a married couple (in 2022), both of whom are applying for Medicaid.
The quandary created by an income cap is that a large number of individuals require care who have more than $2,523 per month in income but not enough income to pay privately for their care. A Qualified Income Trust (QIT), also known as a Miller Trust, can be used to address this anomaly. The Miller Trust received its name from a Colorado case, Miller v. Ibarra, which approved a somewhat similar trust. Miller v. Ibarra, 746 F. Supp. 19 (D. Colo. 1990). The requirements for a Miller Trust are codified at 42 U.S.C. § 1396p(d)(4)(B).
A QIT resolves income issues for the following Medicaid programs only: institutional Medicaid, the STAR+PLUS Home and Community Based Waiver program, and other home- or community-based waiver services, such as MDCP and CLASS. A QIT is expressly excluded as a method of reducing countable income for Medicare Savings Programs, including QMB and SLMB. 1 Tex. Admin. Code § 358.339(c)(4)(B). Additionally, a Miller Trust cannot be used for other home-care programs, such as Family Care, because these programs are not title XIX (or Medicaid) funded services.
See form 12-1 in this chapter for a sample QIT document.
Qualified Income Trust Requirements: Only the ward’s income can be deposited into a QIT. No principal assets or resources may be placed in the QIT, except for a nominal amount of the grantor’s resources needed to initiate the trust account.
The QIT must be irrevocable. Additionally, the QIT must contain a provision that the State of Texas will receive all amounts remaining in the QIT upon the death of the Medicaid recipient up to an amount equal to the total medical assistance paid by Medicaid on behalf of the recipient.
Once the trust is established, only the ward’s income should be deposited into the trust account in the month of receipt. 1 Tex. Admin. Code § 358.339(c)(2)(B), (c)(2)(C). Any income not deposited into the QIT in the month of receipt is considered countable income, and such income may cause the loss of eligibility for benefits in the months that the income is not placed in the QIT. In the case of a married couple with only one spouse applying for benefits, only the income of the eligible spouse should be placed in the QIT. In the case of a married couple both of whom are applying for Medicaid, the income of both spouses should be placed in the QIT.
The QIT must provide that the trustee shall pay the following expenses from the QIT account:
1.a $60 personal needs allowance to the ward;
2.an amount to the spouse, if any, sufficient to provide for the minimum monthly maintenance needs allowance (MMMNA) ($3,435 in 2022);
3.medical expenses not subject to payment by a third party, such as health insurance premiums; and
4.from the funds remaining, the cost of medical assistance provided to the ward.
Practice Pointer: In the QIT declaration, all sources of income that will fund the trust must be listed, but not the amounts of the income. Failure to list the income sources will result in an unsatisfactory QIT and the denial of Medicaid benefits. Additionally, sometimes the ward of the trust cannot execute the QIT agreement, and that individual may not have a valid power of attorney. If the ward cannot sign the trust agreement, the agreement may be executed by an individual with authority over the settlor’s funds or by the settlor’s spouse.
Termination of QIT: Once the Medicaid recipient no longer needs a QIT, all deposits of income into the QIT should cease. Upon the death of the Medicaid recipient, the Medicaid caseworker determines the amount of vendor payments the Medicaid program has made to the nursing home on the recipient’s behalf and sends written notice to the guardian, as the ward’s responsible party, requesting that Medicaid be repaid from the residual funds in the trust. Repayment is made to the Health and Human Services Commission (HHSC) in whole dollar amounts and may be made by cashier’s check, money order, or personal check. A receipt is issued for the payment.
§ 12.5:2Trusts Affecting Medicaid Eligibility
Generally, property held in trust is considered a resource if the guardian could seek authority to revoke the trust or compel distributions from the trust on behalf of the ward. MEPD § F-6100. If the ward (including his guardian or agent) does not have access to the trust, the trust is not considered a countable resource. If the trust is not considered a countable resource, all disbursements from the trust are considered income to the ward, except if such disbursements are made for medical or social services on behalf of the ward. MEPD § F-6100.
All transfers to irrevocable trusts will be considered a disqualifying transfer of asset, unless one of the exception trusts provided for in 42 U.S.C. § 1396p(d)(4)(A)–(C) apply. Exception trusts include a self-settled special needs trust under section (d)(4)(A), a Qualified Income Trust under section (d)(4)(B), or a pooled trust account under section (d)(4)(C). To create a section (d)(4)(A) or (d)(4)(C) trust, the ward must be under age sixty-five. This age restriction also applies to special needs trusts created by a court pursuant to Texas Estates Code chapter 1301 and Texas Property Code chapter 142. An individual of any age may establish a QIT.
Practice Pointer: Note that the placement of a homestead in a revocable living trust converts the homestead to a countable resource under Texas Medicaid rules. MEPD § F-3200. To have the home excluded from countable resources, the home must be removed from the trust and an intent to return home must be reestablished. MEPD § F-3211. To protect the home from Medicaid Estate Recovery at the ward’s death, a guardian might seek court authorization to execute a Lady Bird Deed on behalf of the ward, which would allow the property to pass outside of probate, thereby not subjecting it to Medicaid Estate Recovery. Tex. Est. Code § 1162.001.
§ 12.5:3Spending Down of Assets Through Guardianship Process
The guardian of the estate or an interested party may apply to the court for authority to make a tax-motivated gift or transfer to qualify the ward for government benefits on behalf of the ward. Tex. Est. Code § 1162.001. The court may authorize the guardian to make the tax-motivated gifts or transfers to qualify for government benefits on a periodic basis without further application or court order if the court finds it would be in the best interest of the ward and the ward’s estate. The court may modify or set aside such an order later because of a change in the ward’s financial condition. Tex. Est. Code § 1162.004. Tax-motivated gifts, contributions, and transfers to qualify for government benefits must comply with all requirements of the Texas Estates Code. Any gift or transfer not authorized by the Code, with or without court approval, is invalid.
For further discussion and forms, see part VII in chapter 8 of this manual.
§ 12.5:4Medicaid Transfer of Assets Penalty
Medicaid rules impose a transfer of assets penalty on any transfers for less than fair market value made by a Medicaid recipient. Texas imposes a penalty on institutional services and home- and community-based waiver programs. The length of the penalty period is determined by dividing the uncompensated value of the property by the average daily rate for a private pay patient in a nursing facility (currently $237.93 per day). See MEPD § I-5000. The penalty period does not begin to run until the ward enters a nursing home, files a Medicaid application, and would be eligible for Medicaid benefits but for the transfer. Medicaid considers all transfers occurring within five years (sixty months) of the Medicaid application.
Practice Pointer: Per Texas Estates Code section 1162.001, a guardian is allowed to facilitate transfers of the ward’s property “as necessary to qualify the ward for government benefits.” Before the addition of this provision, a ward was unable to transfer property that would have allowed him to access a government benefit program. Be advised that a court will authorize transfers under this section only if the transfer is allowed by the program. Therefore, a disqualifying transfer may not be allowed under this section.
Exceptions to Medicaid Transfer of Assets Penalty: In certain situations an individual may transfer assets for less than fair market value and not incur a penalty. An individual may transfer his interest in his home, without incurring a penalty, to the following individuals:
1.the ward’s spouse;
2.the ward’s child who is under age twenty-one or who is any age and meets the disability criteria of the SSA;
3.the ward’s sibling who has an equity interest in the home and who resided in the home for at least one year immediately before the ward’s institutionalization; or
4.the ward’s son or daughter (other than a child under age twenty-one or a disabled child) who resided in the home for at least two years immediately before the institutionalization and who was providing care that delayed institutionalization.
MEPD § I-3100.
An individual may transfer any asset, including the home, to the following individuals without incurring a transfer of assets penalty:
1.the ward’s spouse or another individual for the sole benefit of the spouse;
2.a disabled child or a trust for the sole benefit of a disabled child who meets the definition of disability by the SSA; or
3.a trust for the sole benefit of any disabled individual under age sixty-five.
MEPD § I-3200.
A trust created for the “sole benefit” of an individual pursuant to MEPD § I-3200 must meet particular distribution standards, including a provision for the spending of the funds for the beneficiary on a basis that is actuarially sound based on the life expectancy of the individual. MEPD § I-3300.
Practice Pointer: When considering transfers to a disabled child, always inquire about the benefits received by the child. If the child receives a means-tested benefit, such as SSI, any transfer to the child could cause loss of benefits. Therefore, in that situation, the transfer should be in the form of a third-party special needs trust solely for the benefit of the disabled child. If the child receives SSDI, the transfer can be directly to the child without the potential loss of benefits.
§ 12.6Texas Medicaid Estate Recovery Program (MERP)
In Texas, a Medicaid estate recovery claim may be filed against the estate of a deceased Medicaid recipient for covered Medicaid services if the recipient was age fifty-five or older at the time the services were received and the recipient initially applied for Medicaid on or after March 1, 2005. 1 Tex. Admin. Code § 373.103(a). Services covered under the estate recovery program include nursing home services, ICF-MR services, home- and community-based services (e.g., STAR+PLUS Home and Community Based Waiver, CLASS), certain Medicaid-funded attendant services, and related hospital and prescription drug services. 1 Tex. Admin. Code § 373.103(c). Acceptance of one of these Medicaid-funded covered services provides the basis for a Class 7 probate claim. 1 Tex. Admin. Code § 373.201.
For estate recovery purposes, the “estate” of a deceased Medicaid recipient includes the real and personal property of the decedent included under the definition of the probate estate found in section 3(l) of the Texas Probate Code (now Tex. Est. Code § 22.012). 1 Tex. Admin. Code § 373.105. This is a key definition, because it precludes recovery against assets passing outside of the probate estate of the decedent such as remainder interests and interests in survivorship accounts (i.e., POD or JTROS accounts).
MERP should not seek to make a claim against a deceased Medicaid recipient’s estate if one of the statutory exemptions exists. A statutory exemption exists if one of the following individuals survived the Medicaid recipient:
1.a surviving spouse;
2.a child under age twenty-one;
3.a surviving child of any age who is blind or disabled as defined by 42 U.S.C. § 1382c; or
4.an unmarried adult child residing continuously in the decedent’s homestead for at least one year before the time of the Medicaid recipient’s death.
1 Tex. Admin. Code § 373.207(a).
If one of the above statutory exemptions exist, Medicaid will permanently withdraw any potential claim against the deceased Medicaid recipient’s estate. There are also exemptions for certain assets of American Indians or Alaska Natives or for government reparation payments to individuals in special populations. 1 Tex. Admin. Code § 373.207(b), (d).
§ 12.6:2MERP Undue Hardship Waivers
MERP will not recover from an estate if recovery would cause an undue hardship. An undue hardship does not exist solely because recovery would prevent heirs or legatees from receiving an anticipated inheritance or because of circumstances giving rise to a hardship created by, or as the result of, estate planning methods under which assets were sheltered or divested contrary to requirements of Medicaid law in order to avoid estate recovery. 1 Tex. Admin. Code § 373.209(b).
To obtain an undue hardship waiver from estate recovery, one of the following grounds must be established by the ward seeking the waiver:
1.the estate has been operated as a family business, farm, or ranch for at least twelve months before the decedent’s death; is the primary income-producing asset of the heirs and legatees; and the estate produces 50 percent or more of the income of the heirs or legatees, and recovery would cause the heirs or legatees to lose their primary income source;
2.recovery would cause heirs or legatees to become eligible for public medical assistance;
3.waiver recovery would allow one or more survivors to stop receiving public benefits;
4.the decedent received Medicaid as a result of having been a victim of a crime; or
5.other compelling reasons.
1 Tex. Admin. Code § 373.209(c).
§ 12.6:3Deductions from MERP Claim
There are allowable deductions from the estate recovery claim. These deductions are—
1.reasonable and necessary expenses incurred in maintaining the decedent’s home (i.e., property taxes, utility bills, homeowner’s insurance, home repairs, and home maintenance such as lawn care); and
2.expenses incurred in paying the decedent’s cost of care (including attendant care) that delayed nursing home entry.
If a request for a deduction from the claim is made, the request must be supported with documentation, such as receipts, as evidence of the payment of the expenses.
Requests for allowable deductions from the estate recovery claim must be submitted to MERP within sixty days of the receipt of the notice of intent to file a claim. If the request is allowed, the expenses will cause a dollar-for-dollar reduction in the amount of the MERP claim.
§ 12.6:4When MERP Not Cost-Effective
In addition to the statutory exemptions from estate recovery, MERP will not pursue an estate recovery claim if it is not cost-effective. A claim is considered not cost-effective if—
1.the value of the recoverable estate is $10,000 or less;
2.the recoverable Medicaid costs are $3,000 or less; or
3.the costs associated with selling estate property equal or exceed the value of the property.