John L. Roberts
Certified Elder Law Attorney
John L. Roberts, J.D., is an Elder Law Attorney serving clients in Hampden County, MA. After practicing for 15 years, he confronted the challenges of family caregiving when his own father developed dementia. The experience transformed his practice, enabling him to help clients who are family caregivers from a place of true understanding.
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Question
My uncle died and left our family money There is about $150,000 missing from what he told us he had. What are...
You mentioned two documents in your question: a Power of Attorney and a Trust. The authority (power) in a Power of Attorney ends upon the... You mentioned two documents in your question: a Power of Attorney and a Trust.
The authority (power) in a Power of Attorney ends upon the death of the principal (your uncle). The person your uncle named as his agent in the POA had no authority to engage in transactions after the death of your uncle. A Power of Attorney document should have a clause that lists who has the right to demand that the Agent (attorney-in-fact) provide an accounting of the principal's funds and transactions.
Was the Trust that you mentioned established by your uncle during his lifetime (inter vivos), or was it a Testamentary Trust that was created by his will?
An inter vivos trust should have instructions listing who has the right to demand information from the Trustee. State law also has default rules that can help family members hold a Trustee accountable.
If the Trust came into existence after death, through terms of your Uncle's will, the Probate Court will already have jurisdiction over proceedings. State law and the instructions written into the Testamentary Trust can provide ways to enforce accountability from a Trustee.
An attorney working to protect your interests can advise you on the POA and Trust clauses, and state Probate and Trust laws that apply to the circumstances. see more
The authority (power) in a Power of Attorney ends upon the death of the principal (your uncle). The person your uncle named as his agent in the POA had no authority to engage in transactions after the death of your uncle. A Power of Attorney document should have a clause that lists who has the right to demand that the Agent (attorney-in-fact) provide an accounting of the principal's funds and transactions.
Was the Trust that you mentioned established by your uncle during his lifetime (inter vivos), or was it a Testamentary Trust that was created by his will?
An inter vivos trust should have instructions listing who has the right to demand information from the Trustee. State law also has default rules that can help family members hold a Trustee accountable.
If the Trust came into existence after death, through terms of your Uncle's will, the Probate Court will already have jurisdiction over proceedings. State law and the instructions written into the Testamentary Trust can provide ways to enforce accountability from a Trustee.
An attorney working to protect your interests can advise you on the POA and Trust clauses, and state Probate and Trust laws that apply to the circumstances. see more
Question
So frustrated with elder care attorneys. Any guidance?
Dear OzarkOlly: You are on the right path to completing your caregiver contract, so don't give up. Family members who provide elder... Dear OzarkOlly:
You are on the right path to completing your caregiver contract, so don't give up. Family members who provide elder care at home can save their loved one from a nursing home admission. But without a written agreement, the family members may be setting themselves up for problems. Here's why:
Reason 1: The Caregiver Contract recognizes and rewards the time and effort that you give to care, and helps to prevent arguments and misunderstandings among other family members who can't or won't help out.
Reason 2: Without a written agreement, the elder (and others people involved in care such as physicians and health care providers) aren't sure about who is responsible to maintain the needed level of care. The Caregiver Contract includes a written organization of care and other services, that can be adjusted to your changing needs.
Reason 3: Without a written agreement, the elder who pays a family member for care can be disqualified from Medicaid coverage if they need nursing home care in the future. The Caregiver Contract documents the compensation and services in a format that Medicaid can understand and accept.
Your path to the offices of those different attorneys your described is unfortunate. The last thing you need as a caregiver is a run around from people who are supposed to be helping you.
Use your online research skills to qualify the potential attorney. Attorneys who are committed to this field of law can study and take a 1 day examination administered by the National Elder Law Foundation. Attorneys who pass the test, and demonstrate commitment to elder care clients, are listed as Certified Elder Law Attorneys on the NELF website, and on the National Academy of Elder Law Attorneys website. The attorney can't pass the test without knowing all the things you talked about, and much more.
Other attorneys are listed online as members of the National Academy of Elder Law Attorneys, and you can find them listed online. Check to see how active they are in the organization, and as students or presenters of the continuing legal education the organization provides.
If the attorney is actively involved in providing the legal services you described, he or she should be able to list a flat fee and provide you with a Service Plan that puts in writing the services you want him or her to provide. see more
You are on the right path to completing your caregiver contract, so don't give up. Family members who provide elder care at home can save their loved one from a nursing home admission. But without a written agreement, the family members may be setting themselves up for problems. Here's why:
Reason 1: The Caregiver Contract recognizes and rewards the time and effort that you give to care, and helps to prevent arguments and misunderstandings among other family members who can't or won't help out.
Reason 2: Without a written agreement, the elder (and others people involved in care such as physicians and health care providers) aren't sure about who is responsible to maintain the needed level of care. The Caregiver Contract includes a written organization of care and other services, that can be adjusted to your changing needs.
Reason 3: Without a written agreement, the elder who pays a family member for care can be disqualified from Medicaid coverage if they need nursing home care in the future. The Caregiver Contract documents the compensation and services in a format that Medicaid can understand and accept.
Your path to the offices of those different attorneys your described is unfortunate. The last thing you need as a caregiver is a run around from people who are supposed to be helping you.
Use your online research skills to qualify the potential attorney. Attorneys who are committed to this field of law can study and take a 1 day examination administered by the National Elder Law Foundation. Attorneys who pass the test, and demonstrate commitment to elder care clients, are listed as Certified Elder Law Attorneys on the NELF website, and on the National Academy of Elder Law Attorneys website. The attorney can't pass the test without knowing all the things you talked about, and much more.
Other attorneys are listed online as members of the National Academy of Elder Law Attorneys, and you can find them listed online. Check to see how active they are in the organization, and as students or presenters of the continuing legal education the organization provides.
If the attorney is actively involved in providing the legal services you described, he or she should be able to list a flat fee and provide you with a Service Plan that puts in writing the services you want him or her to provide. see more
Question
Does a diagnosis of Alzheimer's qualify a senior for SS disability?
How old is the senior? You can't get both Social Security Retirement and Social Security Disability Benefits. The only exception is... How old is the senior? You can't get both Social Security Retirement and Social Security Disability Benefits.
The only exception is for the worker who took "early retirement" while Social Security was deciding their application for disability benefits. In that case, Social Security will make up the difference between the lower "early retirement" benefits and the worker's full disability benefit amount, if the early retiree is determined to be disabled.
If the person is above Normal Retirement Age (an age between 66 - 67 depending on when you were born) they can only receive Social Security Retirement.
If the person is below Normal Retirement Age, Social Security Disability has a list of diseases and medical conditions that obviously meet the disability standards. Among these diseases is Early Onset Alzheimer’s Disease. Using a procedure called “Compassionate Allowances,” Social Security will quickly identify people who have EA Alzheimer’s and other diseases, and award their benefits. Compassionate Allowances allow the Social Security case worker who is making the disability decision to rely on "minimal objective medical information.”
Social Security employees have been instructed to promptly gather information about medical treatments and activities of daily living from the claimant or third parties. For Compassionate Allowance cases, there will not be a consultative examination by a Social Security doctor unless the exam is “absolutely necessary.” Steps for Processing Compassionate Allowance claims.
The Compassionate Allowance procedures eliminate waiting and uncertainty for people who have clear cases of disability. see more
The only exception is for the worker who took "early retirement" while Social Security was deciding their application for disability benefits. In that case, Social Security will make up the difference between the lower "early retirement" benefits and the worker's full disability benefit amount, if the early retiree is determined to be disabled.
If the person is above Normal Retirement Age (an age between 66 - 67 depending on when you were born) they can only receive Social Security Retirement.
If the person is below Normal Retirement Age, Social Security Disability has a list of diseases and medical conditions that obviously meet the disability standards. Among these diseases is Early Onset Alzheimer’s Disease. Using a procedure called “Compassionate Allowances,” Social Security will quickly identify people who have EA Alzheimer’s and other diseases, and award their benefits. Compassionate Allowances allow the Social Security case worker who is making the disability decision to rely on "minimal objective medical information.”
Social Security employees have been instructed to promptly gather information about medical treatments and activities of daily living from the claimant or third parties. For Compassionate Allowance cases, there will not be a consultative examination by a Social Security doctor unless the exam is “absolutely necessary.” Steps for Processing Compassionate Allowance claims.
The Compassionate Allowance procedures eliminate waiting and uncertainty for people who have clear cases of disability. see more
Question
Can the house remain unoccupied as long as they are alive?
If your question is asking whether Medicaid will continue to pay care costs for your parents, the answer depends on how they hold ownership... If your question is asking whether Medicaid will continue to pay care costs for your parents, the answer depends on how they hold ownership of the house. If they have full ownership (known as fee simple in legal jargon) Medicaid regulations in your state will determine how long before Medicaid requires the property to be sold so that the proceeds can be used for their care. Different regulations apply if they had a more limited form of ownership (example: life estate).
Whichever form of ownership applies in your case, you can save equity value if you follow the regulations and plan. Spending down is not the only option, even in a crisis situation where both spouses are admitted to a facility. Talk with an elder law attorney practicing in your area.
If your question is about the practical aspects of holding onto a vacant house, other aging care.com community members have pointed out how risky that can be. Homeowners insurance will not cover a vacant house, and if something bad happens the losses can be significant. Vacant dwelling insurance is more expensive than homeowners, but your must pay those premiums if you want to protect the property. Vacant swelling coverage is limited, and there will be inspections, but you can't afford not to have the coverage. Talk with your parents' insurance agent. see more
Whichever form of ownership applies in your case, you can save equity value if you follow the regulations and plan. Spending down is not the only option, even in a crisis situation where both spouses are admitted to a facility. Talk with an elder law attorney practicing in your area.
If your question is about the practical aspects of holding onto a vacant house, other aging care.com community members have pointed out how risky that can be. Homeowners insurance will not cover a vacant house, and if something bad happens the losses can be significant. Vacant dwelling insurance is more expensive than homeowners, but your must pay those premiums if you want to protect the property. Vacant swelling coverage is limited, and there will be inspections, but you can't afford not to have the coverage. Talk with your parents' insurance agent. see more
Question
Are there any forms that can just be filled out and filed by me for guardianship over my Mom?
If you can get everyone in your family to agree, it may be possible to "do it yourself" if you are willing to devote the time and... If you can get everyone in your family to agree, it may be possible to "do it yourself" if you are willing to devote the time and attention needed to ask your state court to appoint a guardian. But understand that you'll have to spend hours gathering the information and preparing the forms that the court will needed to consider your requests.
You will need to be in communication with your mother's physicians, and you'll have to obtain the medical / psychiatric certifications that are required by the guardianship laws in your state.
The Probate Courts in my state (Massachusetts) the Probate Court have standardized the process for applying for Guardianship, using forms and checklists that are available online. The court personnel are very helpful, but they can't give out legal advice.
In the end, you may find that hiring an elder law attorney to manage the project for you is a bargain that saves time and lets you focus on your mother's care needs. You should be able to find an attorney to represent you at a reasonable hourly rate. Try the state or national NAELA directory online or your state or county bar association. Ask for a service plan that lists the tasks that the attorney will manage for you. see more
You will need to be in communication with your mother's physicians, and you'll have to obtain the medical / psychiatric certifications that are required by the guardianship laws in your state.
The Probate Courts in my state (Massachusetts) the Probate Court have standardized the process for applying for Guardianship, using forms and checklists that are available online. The court personnel are very helpful, but they can't give out legal advice.
In the end, you may find that hiring an elder law attorney to manage the project for you is a bargain that saves time and lets you focus on your mother's care needs. You should be able to find an attorney to represent you at a reasonable hourly rate. Try the state or national NAELA directory online or your state or county bar association. Ask for a service plan that lists the tasks that the attorney will manage for you. see more
Question
What to do if insurance is refusing to pay for rehab stay at nursing home?
Is the patient a Medicare beneficiary? Aging care.com has several articles on the issues that arise when a nursing home says the resident... Is the patient a Medicare beneficiary? Aging care.com has several articles on the issues that arise when a nursing home says the resident can no longer benefit from rehabilitation:
https://www.agingcare.com/articles/get-medicare-to-pay-for-nursing-home-179738.htm
Whether the patient is covered by Medicare, or a private insurance plan, a geriatric care manager could help you get the facts and document the medical needs. Time is of the essence in preparing a response to the nursing home notice. see more
https://www.agingcare.com/articles/get-medicare-to-pay-for-nursing-home-179738.htm
Whether the patient is covered by Medicare, or a private insurance plan, a geriatric care manager could help you get the facts and document the medical needs. Time is of the essence in preparing a response to the nursing home notice. see more
Question
How do I find out if my Mother had a life insurance when she died in July of 2008?
The insurance Information Institute has a dozen tips on how to find out if the decedent had life insurance at:How can I locate a lost life... The insurance Information Institute has a dozen tips on how to find out if the decedent had life insurance at:How can I locate a lost life insurance policy?
http://www.iii.org/article/how-can-i-locate-lost-life-insurance-policy
At the top of the list searching through the decedent's paper to see if there are any insurance-related documents. Clues could be found in address books or with an agent or company who sold the deceased their auto or home insurance. The may know about the existence of a life insurance policy.
As you search, you may find other assets , or learn more about the estate. see more
http://www.iii.org/article/how-can-i-locate-lost-life-insurance-policy
At the top of the list searching through the decedent's paper to see if there are any insurance-related documents. Clues could be found in address books or with an agent or company who sold the deceased their auto or home insurance. The may know about the existence of a life insurance policy.
As you search, you may find other assets , or learn more about the estate. see more
Question
Would Medicaid take our house?
In your question, you mentioned several ownership transfers of your father-in-law's house. Were the deeds that transferred ownership... In your question, you mentioned several ownership transfers of your father-in-law's house. Were the deeds that transferred ownership drafted by an attorney? If yes, you could ask the attorney who drafted and filed the deeds to explain how the current ownership fits in with your state's Medicaid eligibility regulations.
You mentioned that you have used your own funds to improve your father-in-law's house. There was a case in my state, Andrews v. Division of Medical Assistance, 68 Mass. App. Ct. 228, 861 N.E.2d 483 (App. Ct. 2007), where the courts decided that an elder's Medicaid application had priority over all the time and money her daughter and son-in-law had put into her house. Of course, this case would not apply in your state, but it does demonstrate the importance of getting good advice from an attorney in your state.
https://scholar.google.com/scholar_case?case=11648911402272235067&hl=en&as_sdt=40000006
Several agingcare.com community members have mentioned the Caregiver Child exception to Medicaid transfer rules. An attorney advising your father can explain how this very important exception could help in you. In my state (Massachusetts), the Medicaid agency strictly enforces this exception, so you should make sure that your husband and your father comply with the caregiver exception requirements in your state. An elder law attorney in your area could explain how Medicaid would view the current ownership arrangement.
Has your father-inlaw designated a person to act for him under Power of Attorney? This is very important if his capacity declines and decisions must be made on assets and property ownership. see more
You mentioned that you have used your own funds to improve your father-in-law's house. There was a case in my state, Andrews v. Division of Medical Assistance, 68 Mass. App. Ct. 228, 861 N.E.2d 483 (App. Ct. 2007), where the courts decided that an elder's Medicaid application had priority over all the time and money her daughter and son-in-law had put into her house. Of course, this case would not apply in your state, but it does demonstrate the importance of getting good advice from an attorney in your state.
https://scholar.google.com/scholar_case?case=11648911402272235067&hl=en&as_sdt=40000006
Several agingcare.com community members have mentioned the Caregiver Child exception to Medicaid transfer rules. An attorney advising your father can explain how this very important exception could help in you. In my state (Massachusetts), the Medicaid agency strictly enforces this exception, so you should make sure that your husband and your father comply with the caregiver exception requirements in your state. An elder law attorney in your area could explain how Medicaid would view the current ownership arrangement.
Has your father-inlaw designated a person to act for him under Power of Attorney? This is very important if his capacity declines and decisions must be made on assets and property ownership. see more
Question
Will Medicaid allow gifting to grand children to reduce assets?
Any asset transfer that doesn't return a fair market value to your mom will disqualify her from Medicaid paid nursing home care, unless... Any asset transfer that doesn't return a fair market value to your mom will disqualify her from Medicaid paid nursing home care, unless there is an exception to the Medicaid transfer regulations in the state where your mom lives. Some exceptions to the asset transfer regulations in my state (Massachusetts) allow certain gift transfers that benefit disabled individuals, transfers of a home to a child who cared for the parent for 2 years or more, and transfers to a spouse. But your question doesn't indicate any of these exceptions.
If your mom has made a disqualifying transfer within 5 years of applying for nursing home coverage, Medicaid will deny the application.
There are ways to spend money that don't disqualify, and also prevent or delay the need for a nursing home admission. Buying home care services is not a disqualifying transfer, because your mom is getting fair value in return for the payment of money. Family members can be paid to provide home care services. The Medicaid agency in your state will require documentation of the payments, if your mom needs to apply at some point. A caregiver contract and payroll records could provide evidence that the transfers were not disqualifying.
It is ironic, but elders who experience declining health may abruptly decide to make gift transfers that are motivated by fear of nursing home costs, at the very moment their funds could best be used to provide care at home that can prevent falls and further decline of health. The decision to make the gift transfer results in the need for a nursing home, the source of their initial fear.
The gift to grandchildren, or any other transfer, won't be listed on a Medicaid application if your mom applies for Medicaid nursing home care 5 years after the gift. You explained that she has enough funds to cover her care for 1 year.
If your mom can retrieve the gifted funds, and get advice you can rely on from an elder law attorney and a geriatric care manager in your mom's area, you and your mom could put together a plan that would protect her in the months and years ahead. The team approach should bring your mom to a safe living situation, and peace of mind for you and your brother.
And, check on the transfer rules in your state for home care paid by Medicaid, if your mom is able to receive sufficient care at home. see more
If your mom has made a disqualifying transfer within 5 years of applying for nursing home coverage, Medicaid will deny the application.
There are ways to spend money that don't disqualify, and also prevent or delay the need for a nursing home admission. Buying home care services is not a disqualifying transfer, because your mom is getting fair value in return for the payment of money. Family members can be paid to provide home care services. The Medicaid agency in your state will require documentation of the payments, if your mom needs to apply at some point. A caregiver contract and payroll records could provide evidence that the transfers were not disqualifying.
It is ironic, but elders who experience declining health may abruptly decide to make gift transfers that are motivated by fear of nursing home costs, at the very moment their funds could best be used to provide care at home that can prevent falls and further decline of health. The decision to make the gift transfer results in the need for a nursing home, the source of their initial fear.
The gift to grandchildren, or any other transfer, won't be listed on a Medicaid application if your mom applies for Medicaid nursing home care 5 years after the gift. You explained that she has enough funds to cover her care for 1 year.
If your mom can retrieve the gifted funds, and get advice you can rely on from an elder law attorney and a geriatric care manager in your mom's area, you and your mom could put together a plan that would protect her in the months and years ahead. The team approach should bring your mom to a safe living situation, and peace of mind for you and your brother.
And, check on the transfer rules in your state for home care paid by Medicaid, if your mom is able to receive sufficient care at home. see more
Question
My Mom has had to move into a nursing center. She's applied for Medicaid but unfortunately owes back rent. Adv...
The answer to your question depends on many factors, such as the source(s) of your mother's monthly income, and on the status of any... The answer to your question depends on many factors, such as the source(s) of your mother's monthly income, and on the status of any other assets she may have.
Creditors such as a landlord can't get at Social Security income, but they can reach other assets if they follow your state's creditor-debtor procedures. Medicaid eligibility may be the primary concern right now. Any payments, transfers and promises you make now could have an effect that will make your circumstances even more complicated.
Hiring an attorney in your jurisdiction to help you see where you stand now, and how you got here, is the first step toward understanding how you can begin to settle this situation. see more
Creditors such as a landlord can't get at Social Security income, but they can reach other assets if they follow your state's creditor-debtor procedures. Medicaid eligibility may be the primary concern right now. Any payments, transfers and promises you make now could have an effect that will make your circumstances even more complicated.
Hiring an attorney in your jurisdiction to help you see where you stand now, and how you got here, is the first step toward understanding how you can begin to settle this situation. see more
Question
Can I sell my mother's car? She is in a nursing home on Medicaid.
Your frustration is understandable, and expresses a common conundrum: why should I pay for legal advice when the cost comes close to the... Your frustration is understandable, and expresses a common conundrum: why should I pay for legal advice when the cost comes close to the value of the assets involved?
Other community members here have explained how difficult it can be to stay in compliance with Medicaid's many regulations. Medicaid is swapping data with all the other government agencies. Information about bank accounts and income is continuously being harvested from the IRS and all the other federal and state agencies. As soon as something matches, Medicaid computers can generate notices that make life more stressful for the person managing modest finances of a loved one who needs long term care. Reading Medicaid's return address on the envelope can be the beginning of a bad experience.
Your question about the car sale proceeds is important. Your mother earned the funds to buy that car, and the modest value should be allowed to help supplement her basic needs.
You are probably familiar with the non-countable assets that a Medicaid beneficiary can have (pre paid funeral, burial account, etc). You could spend the car proceeds on those items during the month you sell the car, and your mother shouldn't be over assets. But if you don't report the transaction properly, who knows what misunderstandings Medicaid might draw from its data stream months or years from now?
You explained how you want to keep the money so your mother can use it during her lifetime for the things you mentioned in your question. It's understandable that you wouldn't want to pay to set up a trust fund that would comply with Medicaid regulations.
But there are charities in many states that operate pooled trusts for disabled people, and for people in nursing homes. Money deposited into the person's pooled trust account doesn't count against them. Because these trusts are established for charitable purposes (to help people in difficult circumstances like yours), there might be a pooled trust that would accept an account as small as you're asking about.
There should be an elder law attorney near you who can provide the assistance you need to make good decisions. It's likely that as you get to know and trust the attorney, you'll find other benefits of getting good advice you can rely on. see more
Other community members here have explained how difficult it can be to stay in compliance with Medicaid's many regulations. Medicaid is swapping data with all the other government agencies. Information about bank accounts and income is continuously being harvested from the IRS and all the other federal and state agencies. As soon as something matches, Medicaid computers can generate notices that make life more stressful for the person managing modest finances of a loved one who needs long term care. Reading Medicaid's return address on the envelope can be the beginning of a bad experience.
Your question about the car sale proceeds is important. Your mother earned the funds to buy that car, and the modest value should be allowed to help supplement her basic needs.
You are probably familiar with the non-countable assets that a Medicaid beneficiary can have (pre paid funeral, burial account, etc). You could spend the car proceeds on those items during the month you sell the car, and your mother shouldn't be over assets. But if you don't report the transaction properly, who knows what misunderstandings Medicaid might draw from its data stream months or years from now?
You explained how you want to keep the money so your mother can use it during her lifetime for the things you mentioned in your question. It's understandable that you wouldn't want to pay to set up a trust fund that would comply with Medicaid regulations.
But there are charities in many states that operate pooled trusts for disabled people, and for people in nursing homes. Money deposited into the person's pooled trust account doesn't count against them. Because these trusts are established for charitable purposes (to help people in difficult circumstances like yours), there might be a pooled trust that would accept an account as small as you're asking about.
There should be an elder law attorney near you who can provide the assistance you need to make good decisions. It's likely that as you get to know and trust the attorney, you'll find other benefits of getting good advice you can rely on. see more
Question
Can I borrow on one of Mom's annuities to purchase a cheaper home for us to live in?
I'll limit my comments to your question "Would this in any way affect things with Medicaid down the road and is this... I'll limit my comments to your question "Would this in any way affect things with Medicaid down the road and is this do-able?"
You mentioned that you have a home care contract to care for your mother which was prepared by her elder care attorney. That's an important document that everyone should consider whenever they are providing care to a family member. You had the foresight to put the contract in place, so that transfers of money to you would be documented and recognized in the future by Medicaid as payments for fair value.
By keeping your mom's attorney updated on what you need to do now with her money, you can get the advice you need to make the transactions work in her best interest.
Using the caregiver contract to structure payments for your work should protect your mother's Medicaid eligibility in the future. Getting legal advice on current practice in your jurisdiction can help you decide how to best structure the house purchase and give you peace of mind that the real estate transaction won't undo what you've already accomplished. see more
You mentioned that you have a home care contract to care for your mother which was prepared by her elder care attorney. That's an important document that everyone should consider whenever they are providing care to a family member. You had the foresight to put the contract in place, so that transfers of money to you would be documented and recognized in the future by Medicaid as payments for fair value.
By keeping your mom's attorney updated on what you need to do now with her money, you can get the advice you need to make the transactions work in her best interest.
Using the caregiver contract to structure payments for your work should protect your mother's Medicaid eligibility in the future. Getting legal advice on current practice in your jurisdiction can help you decide how to best structure the house purchase and give you peace of mind that the real estate transaction won't undo what you've already accomplished. see more
Question
Mom has been on Medicaid for 2 years. She has been named in a will of about $25,000.00. How should I report th...
When you say your Mother was "named in a will" can I assume that it is a will of a person who has passed away? (If the person who... When you say your Mother was "named in a will" can I assume that it is a will of a person who has passed away? (If the person who wrote the will is still living and competent, they could change their will).
If "yes" (the person has passed away) you will have to report to Medicaid that your Mother has received a gift. Check the Medicaid rules in your state, but you will probably find that disclaiming (declining to accept) the bequest from the will counts are a disqualifying transfer.
If there is no spouse at home, and the rules say your Mother cannot have more than $2,000 in the bank, the money will have to be used for a non-countable asset (such as pre paid funeral, burial account) or spent down for her care.
Also, consider setting the money aside in a Pooled Trust, to supplement the care that the nursing home is providing. 42 U.S. Code § 1396p(d)(4)(C) allows a Medicaid beneficiary to put assets into a Pooled Trust established and managed by a non-profit association, with a separate account maintained for each beneficiary of the trust, solely for the benefit of individual, and as long as any money remaining in the beneficiary’s account upon the death of the beneficiary are paid to the State from such remaining amounts in the account an amount equal to the total amount of medical assistance paid on behalf of the beneficiary.
https://www.law.cornell.edu/uscode/text/42/1396p
If you consult with an elder law attorney near you, you can get complete advice on non countable assets, pooled trust accounts, and any other options that are available to help your mother. see more
If "yes" (the person has passed away) you will have to report to Medicaid that your Mother has received a gift. Check the Medicaid rules in your state, but you will probably find that disclaiming (declining to accept) the bequest from the will counts are a disqualifying transfer.
If there is no spouse at home, and the rules say your Mother cannot have more than $2,000 in the bank, the money will have to be used for a non-countable asset (such as pre paid funeral, burial account) or spent down for her care.
Also, consider setting the money aside in a Pooled Trust, to supplement the care that the nursing home is providing. 42 U.S. Code § 1396p(d)(4)(C) allows a Medicaid beneficiary to put assets into a Pooled Trust established and managed by a non-profit association, with a separate account maintained for each beneficiary of the trust, solely for the benefit of individual, and as long as any money remaining in the beneficiary’s account upon the death of the beneficiary are paid to the State from such remaining amounts in the account an amount equal to the total amount of medical assistance paid on behalf of the beneficiary.
https://www.law.cornell.edu/uscode/text/42/1396p
If you consult with an elder law attorney near you, you can get complete advice on non countable assets, pooled trust accounts, and any other options that are available to help your mother. see more
Question
Was told Medicare won't pay for Mom's nursing home. Is there any way to change this?
Yes, Medicare will pay the nursing home bill (for up to 100 days), if you mom spends 3 midnights in the hospital as an inpatient, and then... Yes, Medicare will pay the nursing home bill (for up to 100 days), if you mom spends 3 midnights in the hospital as an inpatient, and then she needs skilled services when she is admitted to the nursing home.
Many people don't realize they haven't been admitted to the hospital, even after spending days or weeks in a hospital bed. The story of Lee's husband Larry is one of many, many examples of hospital patients who were not covered by Medicare when they were released to a nursing home:
https://www.agingcare.com/articles/hospital-observation-status-can-be-financially-devastating-175991.htm
A SELF HELP Guide from the Center for Medicare Advocacy suggests you find out right away if you are only in the hospital for “observation.” If you are, try to get that status changed to “INPATIENT.”
medicareadvocacy/self-help-packet-for-medicare-observation-status/
If your mother is an inpatient, discharged from the hospital after 3 midnights for skilled nursing home care, Medicare will cover room and board until she no longer needs skilled services in the nursing home.
Co pays and other details of Medicare Covered Care in a Skilled Nursing Facility at:
https://www.agingcare.com/articles/Medicare-coverage-of-skilled-nursing-facility-153265.htm see more
Many people don't realize they haven't been admitted to the hospital, even after spending days or weeks in a hospital bed. The story of Lee's husband Larry is one of many, many examples of hospital patients who were not covered by Medicare when they were released to a nursing home:
https://www.agingcare.com/articles/hospital-observation-status-can-be-financially-devastating-175991.htm
A SELF HELP Guide from the Center for Medicare Advocacy suggests you find out right away if you are only in the hospital for “observation.” If you are, try to get that status changed to “INPATIENT.”
medicareadvocacy/self-help-packet-for-medicare-observation-status/
If your mother is an inpatient, discharged from the hospital after 3 midnights for skilled nursing home care, Medicare will cover room and board until she no longer needs skilled services in the nursing home.
Co pays and other details of Medicare Covered Care in a Skilled Nursing Facility at:
https://www.agingcare.com/articles/Medicare-coverage-of-skilled-nursing-facility-153265.htm see more
Question
How do you manage the spend down if your income is only your SS check and all goes to maintaining your home?
Medicaid questions are always state-specific, so the ideas in this post can't be applied as an answer to LIFleaBag1934"s question.... Medicaid questions are always state-specific, so the ideas in this post can't be applied as an answer to LIFleaBag1934"s question. But their situation does sound dire, so I wanted to pass along some ideas that could provide hope for people who feel caught in the middle of Medicaid's income rules.
If the question is about home care services paid by Medicaid, the Medicaid agency in my state (Massachusetts) has regulations that allow people who have income over the Federal Poverty Limit to pay a deductible amount over the course of 6 months, and then qualify for Medicaid during the rest of the year. The deductible in my state is the amount that the family’s income before taxes and deductions exceeds the income standard for a six-month period. This deductible can be met when your out-of-pocket medical bills equal or exceed the deductible amount. There are many expenses that can quickly add up to meet the deductible: Medicare premiums and other health insurance premiums (which can be credited prospectively) medical treatment co-pays, over-the-counter remedies, supplies for incontinent adults, foot care, lifeline monitoring, alternative medical treatments such as acupuncture, and, of course, home health care.
If the question concerns a spouse who is already in a nursing home, federal law provides that "if either spouse establishes that the community spouse resource allowance (in relation to the amount of income generated by such an allowance) is inadequate to raise the community spouse’s income to the minimum monthly maintenance needs allowance" the state can allow an amount of assets adequate to provide a minimum monthly maintenance needs allowance (MMMNA). In my state, the community spouse may receive income in excess of the MMMNA if there are exceptional circumstances resulting in significant financial duress that justify the additional monthly income.
The take away concept here is: Mediciad regulations in many states make it possible for people to qualify for coverage. The regulations are intended to help people continue to live safely at home. The benefits of getting help from an elder law attorney who understands your specific circumstances usually make it worthwhile to consult a professional advocate near you. see more
If the question is about home care services paid by Medicaid, the Medicaid agency in my state (Massachusetts) has regulations that allow people who have income over the Federal Poverty Limit to pay a deductible amount over the course of 6 months, and then qualify for Medicaid during the rest of the year. The deductible in my state is the amount that the family’s income before taxes and deductions exceeds the income standard for a six-month period. This deductible can be met when your out-of-pocket medical bills equal or exceed the deductible amount. There are many expenses that can quickly add up to meet the deductible: Medicare premiums and other health insurance premiums (which can be credited prospectively) medical treatment co-pays, over-the-counter remedies, supplies for incontinent adults, foot care, lifeline monitoring, alternative medical treatments such as acupuncture, and, of course, home health care.
If the question concerns a spouse who is already in a nursing home, federal law provides that "if either spouse establishes that the community spouse resource allowance (in relation to the amount of income generated by such an allowance) is inadequate to raise the community spouse’s income to the minimum monthly maintenance needs allowance" the state can allow an amount of assets adequate to provide a minimum monthly maintenance needs allowance (MMMNA). In my state, the community spouse may receive income in excess of the MMMNA if there are exceptional circumstances resulting in significant financial duress that justify the additional monthly income.
The take away concept here is: Mediciad regulations in many states make it possible for people to qualify for coverage. The regulations are intended to help people continue to live safely at home. The benefits of getting help from an elder law attorney who understands your specific circumstances usually make it worthwhile to consult a professional advocate near you. see more
Question
Can you be a guardianship of your Mom or a POA if your already her paid PCA?
You can file a petition with the probate court in your jurisdiction, asking to be appointed Guardian. There will be notices to the public... You can file a petition with the probate court in your jurisdiction, asking to be appointed Guardian. There will be notices to the public and your mother's other family members. Then a judge will decide whether to appoint you.
To be designated her agent in a Power of Attorney document, your mother must have the capacity to understand the significance of signing the document. A person who needs Guardianship now would not have that level of understanding.
You are asking a good question. Should a person who is already a paid employee be given control over the employer's health care, treatment and finances? In some situations it's appropriate. But the responsibilities are many, and putting all the burdens of care, and management onto one person may not be best for you, or your mother. see more
To be designated her agent in a Power of Attorney document, your mother must have the capacity to understand the significance of signing the document. A person who needs Guardianship now would not have that level of understanding.
You are asking a good question. Should a person who is already a paid employee be given control over the employer's health care, treatment and finances? In some situations it's appropriate. But the responsibilities are many, and putting all the burdens of care, and management onto one person may not be best for you, or your mother. see more
Question
How do you get a living trust to pay for caregiving?
You didn't mention whether your friend had put a Power of Attorney in place to manage their finances and business affairs, so it sounds... You didn't mention whether your friend had put a Power of Attorney in place to manage their finances and business affairs, so it sounds like the only fiduciary who has authority right now is the bank's trust department.
A fiduciary is someone who manages another person's money. The trustee must act in the best interests of the person who put the funds in their trust. The bank, as trustee, should be listening to your requests. You sound reasonable and it is certainly in the best interest of your friend to remain at home, in a less restrictive setting than a nursing home.
The terms written in your friend's Living Trust document should give to the bank the authority to make decisions about how to spend the money wisely for that person's benefit. If the trust office won't let you see the trust document, you can use court processes in your jurisdiction to petition for review of the trust, and how it is being administered.
Your first step would be to find an elder law attorney who can advise you on the best approach to take toward helping your friend.
The bank trustee's advice to spend down the trust funds on a nursing home may be unreasonable, and not in the best interest of your friend. An independent review of all the facts can give you some solid answers. see more
A fiduciary is someone who manages another person's money. The trustee must act in the best interests of the person who put the funds in their trust. The bank, as trustee, should be listening to your requests. You sound reasonable and it is certainly in the best interest of your friend to remain at home, in a less restrictive setting than a nursing home.
The terms written in your friend's Living Trust document should give to the bank the authority to make decisions about how to spend the money wisely for that person's benefit. If the trust office won't let you see the trust document, you can use court processes in your jurisdiction to petition for review of the trust, and how it is being administered.
Your first step would be to find an elder law attorney who can advise you on the best approach to take toward helping your friend.
The bank trustee's advice to spend down the trust funds on a nursing home may be unreasonable, and not in the best interest of your friend. An independent review of all the facts can give you some solid answers. see more
Question
How do I use a trust fund and what to use it on?
You didn't mention whether you are the Trustee of the Trust, but your question indicates that you do have the authority over the funds.... You didn't mention whether you are the Trustee of the Trust, but your question indicates that you do have the authority over the funds.
The answer depends on the terms that are written in the trust document and the needs of the trust beneficiary.
You are a fiduciary if you are the Trustee. A fiduciary is someone who manages another person's money. The trustee must act in the best interests of the person who put the funds in their trust.
Your first step would be to find an elder law attorney who can advise you on your role, the terms of the Trust, and the best way to carry out the instructions of the person who put the Trust in place. see more
The answer depends on the terms that are written in the trust document and the needs of the trust beneficiary.
You are a fiduciary if you are the Trustee. A fiduciary is someone who manages another person's money. The trustee must act in the best interests of the person who put the funds in their trust.
Your first step would be to find an elder law attorney who can advise you on your role, the terms of the Trust, and the best way to carry out the instructions of the person who put the Trust in place. see more
Question
Do we put my dad in a nursing home or keep him at home and risk spending everything?
This is a classic case, so common among attorneys: a brilliant lawyer who took care of everyone's business but his own. It is often... This is a classic case, so common among attorneys: a brilliant lawyer who took care of everyone's business but his own.
It is often difficult to help the person who was fiercely independent, and was so used to managing things for others. (My father was also an attorney, who slipped into dementia in his mid 80s).
But there can be some pleasant surprises. The person can realize how moving to assisted living, and then accepting supplemental help in order to stay there, removes a big burden from their daily living and opens up new opportunities for enjoyable interactions. (But the person is probably not going to admit that change of mind and heart to their adult child.)
How it comes about takes some courage and a few miracles. If I had more space, I would tell the full story of how my sister and I brought my Dad on a tour of the assisted living facility, and how he then just let us take care of the move. We faxed his health care proxy faxed over to the VA so they could get the health certification faxed over to the assisted living, and from there he enjoyed several years of daily bridge games and all the other amenities that gave us peace of mind.
It sounds like you are working alone on this. Have you considered a geriatric care manager? Getting more people on your team can help make more miracles happen. A GCM with the right personality could open up new paths to peace of mind. see more
It is often difficult to help the person who was fiercely independent, and was so used to managing things for others. (My father was also an attorney, who slipped into dementia in his mid 80s).
But there can be some pleasant surprises. The person can realize how moving to assisted living, and then accepting supplemental help in order to stay there, removes a big burden from their daily living and opens up new opportunities for enjoyable interactions. (But the person is probably not going to admit that change of mind and heart to their adult child.)
How it comes about takes some courage and a few miracles. If I had more space, I would tell the full story of how my sister and I brought my Dad on a tour of the assisted living facility, and how he then just let us take care of the move. We faxed his health care proxy faxed over to the VA so they could get the health certification faxed over to the assisted living, and from there he enjoyed several years of daily bridge games and all the other amenities that gave us peace of mind.
It sounds like you are working alone on this. Have you considered a geriatric care manager? Getting more people on your team can help make more miracles happen. A GCM with the right personality could open up new paths to peace of mind. see more
Is it legal to serve any legal documents to a person with dementia without their POA present?
If you cannot afford to help your mother with private legal services, you may be able to get help from a staff attorney at a legal services agency.
Also consider hiring a geriatric care manager, who works for you and your mother to make sure that appropriate care is established and not interrupted. The GCM specializes in finding programs and resources that fit the needs of each individual. There may be sources of payment and other resources available to you that can prevent this serious situation from arising again.
Working with the attorney you select, the GCM could be a key to resolving the current problem. see more