Assets are things you own that have value. Assets include all income and all resources. 42 U.S.C. § 1396p(h)(1). They are one-half of a net-worth calculation (the other half being liabilities). Medicaid treats different types of assets differently, with some being countable and others being non-countable (or exempt) during the eligibility determination. Recall that you must be “poor enough” to get Medicaid when eligibility is determined so the more you have (or more to the point, the more Medicaid “counts”), the less likely it is that you will qualify. Here, we look at the different asset types and how Medicaid views them.
A right to use or control property usually signifies property rights countable toward eligibility for public benefits. O.C.G.A. § 44-1-1 defines property as:
(1) Realty and personalty which is actually owned;
(2) The right of ownership of realty or personalty; and
(3) That which is subject to being owned or enjoyed.
Valuation
Always keep in mind that ownership is one part of the eligibility evaluation. Just because you own something doesn’t mean it prevents you from becoming eligible. Valuation is generally fair market value minus encumbrances. Therefore a fully encumbered resource will not prevent an applicant from becoming eligible for Medicaid. See POMS SI 01110.400.
Real Property
Real property is further defined as:
(a) As used in this title, the term “realty” or “real estate” means:
(1) All lands and the buildings thereon;
(2) All things permanently attached to land or to the buildings thereon; and
(3) Any interest existing in, issuing out of, or dependent upon land or the buildings thereon.
(b) The property right of the owner of real estate extends downward indefinitely and upward indefinitely.
Fixtures generall remain with land and are defined as:
(a) Anything which is intended to remain permanently in its place even if it is not actually attached to the land is a fixture which constitutes a part of the realty and passes with it.
(b) Machinery which is not actually attached to the realty but is movable at pleasure is not a part of the realty.
(c) Anything detached from the realty becomes personalty instantly upon being detached.
See O.C.G.A. § 44-1-6.
Personal Property
Personal property, sometimes called chattel, is:
(a) As used in this title, the term “personalty” or “personal estate” means all property which is movable in nature, has inherent value or is representative of value, and is not otherwise defined as realty.
(b) Stocks representing shares in a corporation which holds lands or a franchise in or over lands are personalty.
See O.C.G.A. § 44-1-3. Examples of personal property are contract rights, the right to items such as eletronics, furniture and vehicles. Personalty is deemed to be in the possession of a party when that party’s right to the property is accompanied by immediate actual or constructive possession. O.C.G.A. § 44-1-7.
Chose in Action
The phrase chose in action describes property rights that may only be obtained or enforced through litigation. See O.C.G.A.§ 44-12-20 et seq.
Estates
O.C.G.A. § 44-1-4 defines the term “estate” as “the quantity of interest which an owner has in real or personal property. Any estate which can be created in realty may be created in personalty.” In this context, estate refers to a living individual’s interest in property. Estate can also refer to property owned by a decedent or a ward.
Title
Title signifies the means whereby a person’s right to property is established. See O.C.G.A. § 44-1-5. One person may have the right of possession of certain property and another person may have the right to the property itself. A union of those rights constitutes a perfect title. O.C.G.A. § 44-1-12.
Property rights in animals
(a) Property rights may exist in all animals, birds, and fish. To constitute property in those which are wild by nature as distinguished from domestic animals, they must be in the actual possession, custody, or control of the party claiming a property interest. Possession, custody, or control of wild animals may be obtained by taming or domesticating them, by confining them within restricted limits, or by killing or capturing them.
(b) Notwithstanding subsection (a) of this Code section, no property right shall be created in wildlife as defined by Code Section 27-1-2.
Actions to Recover; Trover
An action to recover personal property is a trover action and is governed by O.C.G.A. § 44-12-150 et seq. “[E]very violation of an express or implied contract and for every injury done by another to one’s person or property, the law gives a right to recover and a remedy to enforce it. The right is a chose in action, and the remedy is an action at law.” O.C.G.A. § 44-12-21
