dissenting.
[¶ 29] I respectfully dissent.
[¶ 30] The majority correctly describes our standard of review of an administrative decision. Majority opinion at ¶ 10. The agency’s findings include that rental payments were an available asset disqualifying Shirley Bleick from receiving benefits because “transfer or assignment of the rental income was ‘best viewed as an annual gift.’ ” Id. at ¶ 20. This finding decides the case, but I believe reversal is required because the finding enjoys no support in the record.
[¶ 31] The majority concludes the agency reasonably could have found the gift was made annually. Majority opinion at ¶ 20. However, much of the cited evidence supports the contrary conclusion:
“There was evidence Shirley Bleick moved off the life estate property in 1988, Brian Bleick farmed the land full time until 1991, and Ulmer began renting some of the farmland in 1992. Brian Bleick testified that Shirley Bleick said she never wanted any money. off the land in 1988 and she never talked to him about rent for the land after 1988. He testified that she never mentioned the rent. There was evidence Ulmer pays rent for the land directly to Brian Bleick. There was no evidence Shirley Bleick and her son discussed the rent after Ulmer began renting the property. The Department found Brian Bleick ‘expressed entitlement to free and unfettered use of the land subject to Shirley’s life estate’ and he viewed and treated the land as his own in fee simple. The lease for the rented farmland is between Ulmer and Brian Bleick. Brian Bleick testified he thought the income from the life estate was his, he paid the taxes on the land, and he used the income for farm expenses.”
Id. Further facts and agency findings support my conclusion:
“The Department also found Brian Bleick and his wife live on land that is part of Shirley Bleick’s life estate, and they have never paid rent for the use of the land. The Department found Brian Bleick ‘expressed entitlement’ to the rental income and viewed and treated all of the life estate land as his own in fee simple. The Department found ‘Shirley gifted the income stream due to her from rents from Ulmer to Brian. Shirley can also be viewed to have knowingly gifted the imputed rents due her from Brian and Vicki.’ ”
Id. at ¶ 16.
[¶ 32] The majority recites extensive facts the agency could have relied upon to find an annual gift. Majority opinion at ¶21. More telling is what the agency actually wrote:
“It was troubling that Brian expressed entitlement to Shirley’s rental income because ‘that was the way she ■ wanted it’ and ‘that was the way it was always done.’ Brian expressed entitlement to free and unfettered use of the land subject to Shirley’s life estate. Brian viewed and treated all of the subject *147land as his own in fee simple. The law does not allow an individual, such as Shirley, to self-impoverish in order to pass on assets to family members. Shirley gifted the income stream due to her from rents from Ulmer to Brian. Shirley can also be viewed to have knowingly gifted the imputed rents due her from Brian and Vicki. One temptation is to impose a fiction, imputing an income stream and determining recipient liability reworking the entire case. Another is to view Shirley’s gifts as disqualifying transfers of income and impose a consequence of ineligibility based on look back period. N.D. Admin. Code § 75-02-02.1-33.1(l)(a) (providing three year look back period for transfers made pri- or to February 8, 2006); N.D. Admin. Code § 75-02-02.1-33.2(2) (providing five year look back period for transfers on or after February 8, 2006); N.D. Admin. Code § 75-02-02.1-33.1(12) (establishing implied trust where an individual who disposes of assets or income to someone in a confidential relationship).”
[¶ 33] Shirley Bleiek made her Medicaid application in March of 2007 and the five year look-back extended to March of 2002. The law recognizes she could make a present gift of the land and its income as long as her intent was not to make a gift at some future time. Heuer v. Heuer, 64 N.D. 497, 503, 253 N.W. 856, 859 (1934); 38 Am. Jur. 2d Gifts § 15 (2010). Life estate interests in real property are excluded when calculating an applicant’s available assets. N.D. Admin. Code § 75-02-02.1-28(21). Therefore the agency could only claim Shirley Bleick’s assets included income from the life estate. However, the evidence relied upon by the agency shows that since 1988 Brian Bleiek treated Shirley Bleick’s life estate property and income as his own. No evidence relied on by the agency for its decision indicates Shirley Bleiek intended in 1988 that the transfer to Brian Bleiek as anything other than permanent, and the agency’s supposition to the contrary does not constitute evidence. See, e.g., Pfeiffer v. N.D. Workmen’s Comp. Bureau, 57 N.D. 326, 221 N.W. 894, 897 (1928) (holding a claimant must prove entitlement to benefits by the preponderance of the evidence, which is not sustained by mere surmise or conjecture); Foss v. N.D. Workmen’s Comp. Bureau, 214 N.W.2d 519, 525 (N.D.1974) (concluding claimant’s position, unsupported by medical testimony whatsoever, was insufficient to meet her burden of proof).
[¶ 34] I would reverse the agency and order payment of Medicaid benefits because the agency’s finding that Brian Bleiek received an “annual gift” ipade during or after the look-back period is not supported by its findings.
[¶ 35] Daniel J. Crothers