§ 177.23. Ownership.
(a) Legally available resources. Only resources which are legally available, or are deemed available in the case of sponsors of aliens, to the client are applied toward the resource limitation. See § 177.2 (relating to definitions).
(1) When consent to dispose of resources is needed, but is withheld by a person who is not a member of the budget group or by an LRR who does not reside in the home, the resource is not available. The shared ownership and the person’s refusal to dispose of the resource shall be verified. The unavailability of resources shall be verified at application and no less often than each reapplication.
(2) Special requirements for the disposal of real or personal property owned by an LRR are contained in § § 177.11(g), 177.21(b) and (c) and 177.22 (c)—(e) (relating to identification and verification of resources; personal property; and real property).
(3) Entireties property is property owned jointly by a husband and wife. One spouse cannot, without the other’s consent, liquidate the property to support children for whom both persons are not legally responsible.
(b) Establishing ownership. Real and personal property can have more than one owner. Establishing the type of ownership is essential in determining the availability and the value of the budget group’s resources.
(1) The following rebuttable presumptions apply in determining the availability of real and personal property resources:
(i) If a budget group member is the sole owner, assume that the resource is available.
(ii) If ownership is shared by persons who are budget group members, it is assumed that the resource is available.
(iii) If ownership is shared by a budget group member and a person who is not an applicant or recipient, the type of shared ownership shall be established to determine availability and the following rebuttable presumptions apply:
(A) If the budget group member has a separate legal interest which can be disposed of without the consent of the other owners, assume the budget group member’s share of the resource is available.
(B) If the budget group member has a legal interest which can be disposed of only with the consent of the other owners, and consent is not withheld, assume that the budget group member’s share of the resource is available.
(2) A bank account owned jointly by husband and wife is not entireties property unless a contrary intent is clearly shown, or the account predates September 1, 1976. A bank account may be held in many forms, including ‘‘A and B,’’ ‘‘A or B,’’ ‘‘A and B, or both’’ and ‘‘A in trust for B.’’ The legal rights of the parties are not wholly determined by the title of the account. The account title or caption merely determines the rights of the account vis-a-vis the bank and not their rights vis-a-vis each other. The following rebuttable presumptions are applied in determining the availability of bank accounts:
(i) The persons whose names appear on the account title are the owners.
(ii) Persons who own an account jointly—for example, and, or, and/or—own the account in proportion to their contributions.
(iii) If contributions cannot be determined, each owner of a joint account owns an equal share.
(iv) If an account is titled ‘‘in trust for,’’ the account is a tentative trust, unless written trust documents exist. A tentative trust is owned by the trustee, and the beneficiary has no legal rights before the death of the trustee.
Authority The provisions of this § 177.23 issued under sections 201(2) and 403(b) of the Public Welfare Code (62 P. S. § § 201(2) and 403(b)); amended under section 403(b) of the Public Welfare Code (62 P. S. § 403(b)).
Source The provisions of this § 177.23 adopted August 4, 1977, effective August 5, 1977, 7 Pa.B. 2180; amended January 4, 1980, effective March 5, 1980, 10 Pa.B. 43; explained November 6, 1981, 11 Pa.B. 3954; amended November 6, 1981, effective November 7, 1981, 11 Pa.B. 3969; amended November 6, 1981, effective November 7, 1981, 11 Pa.B. 3972; amended November 6, 1981, effective November 7, 1981, 11 Pa.B. 3973; amended July 9, 1982, effective July 10, 1982, 12 Pa.B. 2175; corrected July 23, 1982, effective July 10, 1982, 12 Pa.B. 2324; amended August 26, 1988, effective November 1, 1988, 18 Pa.B. 3893. Immediately preceding text appears at serial pages (108898) to (108904).
Notes of Decisions The Department properly applied its ‘‘name-on-the-instrument’’ rule attributing entire pension to petitioner for purposes of computing his patient pay amount; wife has no present ownership interest in pension although it is marital property subject equitable distribution upon divorce. Buck v. Department of Public Welfare, 566 A.2d 1269 (Pa. Cmwlth. 1989).
Petitioner failed to prove that transfer of funds was for fair consideration and there was insufficient record evidence to rebut presumption that such transfer was for the purpose of defrauding the Commonwealth, where there were inconsistent statements with regard to transfer of funds from petitioner to ex-spouse, and where handwritten documents were offered as evidence only after County Assistance Office investigated. Feldbauer v. Department of Public Welfare, 525 A.2d 837 (Pa. Cmwlth. 1987).
Although an applicant for Medical Assistance has the burden of showing that any transfer of property was not primarily for the purpose of acquiring or retaining eligibility for assistance, it is clear from the regulations that a transfer of property may be made to avoid the payment of inheritance tax. Goughenour v. Department of Public Welfare, 514 A.2d 993 (Pa. Cmwlth. 1986).
The fact of a sale of a home with a market value of $3,809.97 to a son and daughter for a price of $2,205.70 shortly before the seller applies for AFDC benefits, constituted sufficient evidence to apply a rebuttable presumption of intent to defraud such that the denial of AFDC benefits under subsection (b) (1) was sustained. Mortimer v. Department of Public Welfare, 468 A.2d 522 (Pa. Cmwlth. 1983).
A former Commonwealth employe may not claim assistance under 55 Pa. Code § 177.23 during the period that she is engaged in efforts to compel the Commonwealth to reinstate her in her position of employment. Waller v. Department of Public Welfare, 443 A.2d 1222 (Pa. Cmwlth. 1982).
The discontinuance of AFDC benefits to a recipient because of her failure to apply for state retirement funds is proper, given her agreement in an assistance application form to pay the Department such funds and the provisions of 55 Pa. Code § § 177.21(b) (relating to policy), 177.22 (relating to definitions) and 177.23. Waller v. Department of Public Welfare, 443 A.2d 1222 (Pa. Cmwlth. 1982).
The presumption found at 55 Pa. Code § 177.23(b)(1)(i)(B)(II) applies to property settlements in dissolutions if the property is bargained for between the married couple, but not if a spouse is allegedly bargaining on behalf of her parents. Washabaugh v. Department of Public Welfare, 410 A.2d 1327 (Pa. Cmwlth. 1980).
If an applicant transfers real estate back to her parents upon dissolution of her marriage one and one half months before applying for assistance and it is clear that services rendered by the parents during her marriage were neither made in contemplation of a return of the property nor were equal in value to that of the property, then the transfer was clearly without fair consideration. Washabaugh v. Department of Public Welfare, 410 A.2d 1327 (Pa. Cmwlth. 1980).
If an applicant transfers real estate back to her parents upon dissolution of her marriage one and one half months before applying for assistance and it is clear that services rendered by the parents during her marriage were neither made in contemplation of a return of the property nor were equal in value to that of the property, then the transfer was clearly suspicious enough to warrant the application of 55 Pa. Code § 177.23(b)(1)(i)(C). Washabaugh v. Department of Public Welfare, 410 A.2d 1327 (Pa. Cmwlth. 1980).
An applicant who is required by a DPW order as a condition of eligibility for assistance to elect to take the railroad retirement benefits of her late husband in lump sum form has not violated the provisions of 55 Pa. Code § 177.23(b)(1) (relating to requirements), since she would receive fair consideration for the benefits and would not be defrauding the Commonwealth. Armlovich v. Department of Public Welfare, 411 A.2d 893 (Pa. Cmwlth. 1980).
The denial of benefits to an applicant because of her failure to apply for the railroad retirement benefits of her late husband serves to further the purpose of the welfare system, since the applicant is not a ‘‘needy’’ person which the program is designed to assist, and assistance is intended to supplement, not to replace, the resources of an individual. Armlovich v. Department of Public Welfare, 411 A.2d 893 (Pa. Cmwlth. 1980).
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