Petition of Estate of Thea Braiterman
169 N.H. 217
N.H.2016Background
- Thea Braiterman created an irrevocable trust in 1994, funding it with real property (including her home), personal property, and $1.00; she and her son David were named trustees and her children were legatees.
- Braiterman resigned as trustee in 2008 but retained powers as donor to appoint trustees, appoint income or principal to legatees (including lifetime gifts), require income accumulation, and suggest termination if Medicaid eligibility was threatened.
- After she entered assisted living and later a nursing home, proceeds from sale of the home were invested; the trust held roughly $130,000–$189,000 between 2009 and 2013 and made various disbursements to others for undisclosed purposes.
- In Feb 2014 Braiterman applied for Medicaid-Old Age Assistance (Medicaid-OAA); DHHS denied eligibility because the Trust was counted as an asset; the AAU upheld DHHS’s determination and the estate sought certiorari.
- Central legal question: whether, under 42 U.S.C. § 1396p(d)(3)(B), there were “any circumstances” in which payments from the irrevocable Trust could be made to or for Braiterman’s benefit, making the Trust a countable asset for Medicaid eligibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Trust is a "countable" asset under 42 U.S.C. § 1396p(d)(3)(B) | Trust was structured to keep assets out of applicant's control; applicant was not a beneficiary and intent should preserve exclusion | Trust’s terms and reserved powers created circumstances where payments could be made to or for applicant’s benefit, so corpus/income are available resources | Held: Trust is countable; AAU reasonably concluded there were circumstances payments could benefit applicant |
| Whether applicant’s resignation as trustee and non-beneficiary status preclude counting the Trust | Resignation and lack of beneficiary designation render the Trust unavailable to applicant | Retained donor powers and prior trustee powers (and clauses encouraging legatees to assist) create potential availability | Held: Non-beneficiary status/resignation not dispositive; retained powers permit potential benefit to applicant |
| Whether speculative or remote possibilities (e.g., collusion) suffice to make trust countable | Any suggestion of collusion is speculative; similar cases rejected speculative revocation theories | Clause 4.1.1 and broad reserved powers make benefit possibilities concrete enough, not merely speculative | Held: Possibilities here are not purely speculative; Trust anticipates scenarios benefiting applicant |
| Whether federal guidance (State Medicaid Manual) supports excluding or including the Trust | Petitioner argued intent and timing of Manual shouldn’t govern Trust created before Manual updates | DHHS and court relied on Manual’s definition of "payment" and "for the benefit" as persuasive agency interpretation | Held: Court found Manual persuasive and applied it to conclude payments could be made for applicant’s benefit |
Key Cases Cited
- Petition of Maxi Drug, 154 N.H. 651 (discusses certiorari as extraordinary remedy)
- Dube v. N.H. Dep’t of Health & Human Servs., 166 N.H. 358 (statute/regulation interpretation reviewed de novo)
- Lewis v. Alexander, 685 F.3d 325 (3d Cir.) (explains Congress’s objective to count certain trusts for Medicaid eligibility)
- Arkansas Dept. of Health & Human Servs. v. Ahlborn, 547 U.S. 268 (Medicaid joint federal-state structure and limits)
- Doherty v. Director of Office of Medicaid, 908 N.E.2d 390 (Mass. App. Ct.) (trust structured to permit settlor benefit is countable)
- Heyn v. Director of Office of Medicaid, 48 N.E.3d 480 (Mass. App. Ct.) (distinguishable decision addressing availability of principal under different trust terms)
- Lebow v. Com’r of Div. of Medical Assistance, 740 N.E.2d 978 (Mass.) (discusses any circumstance test under trust-distribution rules)