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
When to put money into Special Needs Trust?
You are asking a series of important questions that affect the lives and finances of two people: 1) your mother. Consider her care needs... You are asking a series of important questions that affect the lives and finances of two people:
1) your mother. Consider her care needs and ways you can use her resources to avoid a nursing home admission.
2) your brother. Consider his needs, and ways supplemental funds could improve his life.
You explained how both people need to comply with the regulations the govern public benefits. You are in the position of responsibility for understanding the rules that affect both people.
The terms of your brother's Special Needs Trust are the key to understanding whether the Trust is a useful way of managing your mother's precious financial resources. Here are some questions you could ask an elder law - special needs attorney who can help you:
Does my brother's Special Needs Trust have the language that is needed to make any transfers my mother makes to fund the Trust "not countable" if she needs Medicaid?
What are the fraudulent transfer laws in my mom's state? Will a transfer to a disabled child's trust be exempt from "claw back" by her creditors?
Is the Supplemental Needs Trust written properly, so any funds in it won't be considered "available resources" to my brother?
You mentioned that your mother has limited resources to contribute to the Trust, and you are reluctant to get involved in dealing with distributions. Have you considered establishing an account with pooled trust in your state? These are known as (d)(4)(C) trusts. The pooled trust administrators are professionals, and can handle the details of distributing your brother's funds at standard rates. see more
1) your mother. Consider her care needs and ways you can use her resources to avoid a nursing home admission.
2) your brother. Consider his needs, and ways supplemental funds could improve his life.
You explained how both people need to comply with the regulations the govern public benefits. You are in the position of responsibility for understanding the rules that affect both people.
The terms of your brother's Special Needs Trust are the key to understanding whether the Trust is a useful way of managing your mother's precious financial resources. Here are some questions you could ask an elder law - special needs attorney who can help you:
Does my brother's Special Needs Trust have the language that is needed to make any transfers my mother makes to fund the Trust "not countable" if she needs Medicaid?
What are the fraudulent transfer laws in my mom's state? Will a transfer to a disabled child's trust be exempt from "claw back" by her creditors?
Is the Supplemental Needs Trust written properly, so any funds in it won't be considered "available resources" to my brother?
You mentioned that your mother has limited resources to contribute to the Trust, and you are reluctant to get involved in dealing with distributions. Have you considered establishing an account with pooled trust in your state? These are known as (d)(4)(C) trusts. The pooled trust administrators are professionals, and can handle the details of distributing your brother's funds at standard rates. see more
Question
Can Medicare take all of someone Insurance money?
Can I assume that you are asking about Medicaid eligibility for your grandmother's nursing home care? (Medicare coverage should not be... Can I assume that you are asking about Medicaid eligibility for your grandmother's nursing home care? (Medicare coverage should not be affected by inheritance of a life insurance policy).
If your question is about Medicaid, your question shows us how Estate Planning and Probate law overlaps with the laws and regulations that govern Public Benefits like Medicaid.
If the gentleman who passed away had no will, and there is no beneficiary listed on the insurance policy, the life insurance money passes to the person(s) listed in your state's "intestacy" law. That's the Probate law that the attorney explained to you.
If your grandmother is the "next of kin," the Public Benefits laws and regulations decide how much money she can have in the bank when Medicaid decides whether it will pay for her nursing home care. The lesson for most of us reading this is the need for everyone in our families to plan ahead, so that we won't leave problems for our survivors.
It sounds like the son could have done some planning to protect your grandmother. But there are many things you can still do now, to make sure the life insurance money benefits your grandmother, and does not disqualify her from receiving Medicaid nursing home coverage. Talk to an elder law attorney who understands your grandmother's needs and circumstances, and ask about pooled trusts in your state that are administered by charities. see more
If your question is about Medicaid, your question shows us how Estate Planning and Probate law overlaps with the laws and regulations that govern Public Benefits like Medicaid.
If the gentleman who passed away had no will, and there is no beneficiary listed on the insurance policy, the life insurance money passes to the person(s) listed in your state's "intestacy" law. That's the Probate law that the attorney explained to you.
If your grandmother is the "next of kin," the Public Benefits laws and regulations decide how much money she can have in the bank when Medicaid decides whether it will pay for her nursing home care. The lesson for most of us reading this is the need for everyone in our families to plan ahead, so that we won't leave problems for our survivors.
It sounds like the son could have done some planning to protect your grandmother. But there are many things you can still do now, to make sure the life insurance money benefits your grandmother, and does not disqualify her from receiving Medicaid nursing home coverage. Talk to an elder law attorney who understands your grandmother's needs and circumstances, and ask about pooled trusts in your state that are administered by charities. see more
Question
The law says NH must allow patients to be free from restraints, do they comply?
Under Federal law, patients have the right to be free from: any physical or chemical restraints imposed for purposes of discipline or... Under Federal law, patients have the right to be free from:
any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident’s medical symptoms. Restraints may only be imposed—
(I) to ensure the physical safety of the resident or other residents, and
(II) only upon the written order of a physician that specifies the duration and circumstances under which the restraints are to be used.”
42 U.S.C. § 1395i-3(c)(1)(A)(ii) and 42 U.S.C. § 1396r(c)(1)(A)(ii).
Guidance issued to Surveyors for Long Term Care Facilities by the Centers for Medicare & Medicaid Services lists the serious conditions that justify antipsychotic use, and the inadequate indications for administering antipsychotic medications. They should not be used if the only indication is one or more of the following:
1) wandering;
2) poor self-care;
3) restlessness;
4) impaired memory;
5) mild anxiety;
6) insomnia;
7) unsociability;
8) inattention or indifference to surroundings;
9) fidgeting;
10) nervousness;
11) uncooperativeness; or
12) verbal expressions or behavior that are not due to the conditions listed under “Indications” and do not represent a danger to the resident or others. Guidance issued by the Centers for Medicare & Medicaid Services, State Operations Manual, Appendix PP at 387 [PDF document page 434]. When antipsychotics are used without monitoring they may be considered unnecessary medications because of inadequate monitoring. Id. at 389.
In my state, Massachusetts, the legislature has enacted a law that requires all nursing homes to get consent from a resident, or a Health Care Agent or Guardian, before administering any psychotropic medication. This informed consent law requires the nursing home to give notice to the resident that includes (i) the purpose for administering a psychotropic drug, (ii) the prescribed dosage, and (iii) any known effect or side effect of the psychotropic medication. This law is codified as Mass. Gen. Laws ch. 111, §72BBB, but it is up to family members to be aware of the needs of the dementia patient, and the alternatives to antipsychotic medications.
Sources:
www.law.cornell.edu/uscode/text/42/1395i-3
www.law.cornell.edu/uscode/text/42/1396r
www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107ap_pp_guidelines_ltcf.pdf
www.malegislature.gov/Laws/GeneralLaws/PartI/TitleXVI/Chapter111/Section72BB see more
any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident’s medical symptoms. Restraints may only be imposed—
(I) to ensure the physical safety of the resident or other residents, and
(II) only upon the written order of a physician that specifies the duration and circumstances under which the restraints are to be used.”
42 U.S.C. § 1395i-3(c)(1)(A)(ii) and 42 U.S.C. § 1396r(c)(1)(A)(ii).
Guidance issued to Surveyors for Long Term Care Facilities by the Centers for Medicare & Medicaid Services lists the serious conditions that justify antipsychotic use, and the inadequate indications for administering antipsychotic medications. They should not be used if the only indication is one or more of the following:
1) wandering;
2) poor self-care;
3) restlessness;
4) impaired memory;
5) mild anxiety;
6) insomnia;
7) unsociability;
8) inattention or indifference to surroundings;
9) fidgeting;
10) nervousness;
11) uncooperativeness; or
12) verbal expressions or behavior that are not due to the conditions listed under “Indications” and do not represent a danger to the resident or others. Guidance issued by the Centers for Medicare & Medicaid Services, State Operations Manual, Appendix PP at 387 [PDF document page 434]. When antipsychotics are used without monitoring they may be considered unnecessary medications because of inadequate monitoring. Id. at 389.
In my state, Massachusetts, the legislature has enacted a law that requires all nursing homes to get consent from a resident, or a Health Care Agent or Guardian, before administering any psychotropic medication. This informed consent law requires the nursing home to give notice to the resident that includes (i) the purpose for administering a psychotropic drug, (ii) the prescribed dosage, and (iii) any known effect or side effect of the psychotropic medication. This law is codified as Mass. Gen. Laws ch. 111, §72BBB, but it is up to family members to be aware of the needs of the dementia patient, and the alternatives to antipsychotic medications.
Sources:
www.law.cornell.edu/uscode/text/42/1395i-3
www.law.cornell.edu/uscode/text/42/1396r
www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107ap_pp_guidelines_ltcf.pdf
www.malegislature.gov/Laws/GeneralLaws/PartI/TitleXVI/Chapter111/Section72BB see more
Question
Can I be held legally responsible for damages to my Mother's house or injuries that may happen to my Mother in...
The fact pattern you described is familiar. I typed in a search of agingcare.com for "elder neglect" and the top article is on... The fact pattern you described is familiar. I typed in a search of agingcare.com for "elder neglect" and the top article is on self neglect:
https://www.agingcare.com/News/The-Hidden-Dangers-of-Elder-Self-Neglect-146760.htm
Your question about legal responsibility is important. Can a family member simply walk away from someone whom they have cared for? There may be many theories of liability. Rather than write about all the bad things that could be imagined, I'd like to mention some of the resources and approaches that you could look to, for help with these difficult and frustrating circumstances.
Have you called on the Area Agency on Aging, ASAP (Aging Services Access Point) or town senior center? There may be many resources for care and assistance available to you. These agencies should provide you with approaches that can work.
Alzheimer's Association offers support groups and training for caregivers.
If you need legal authority to protect your mother's finances and health, a Conservatorship and/or Guardianship petition can bring the needs into focus and provide you, or an objective professional Guardian, with the authority to manage care and finances. There may be a charitable organization that provides guardianship services in your area.
The ASAP and/or an elder law attorney can help you identify home care reimbursement and payment programs that may be available through Medicaid, state agencies or the VA if you mother or father are veterans.
There's no denying the difficulty of the situation, but finding help to serve your mother's best interests is an accomplishment that is worth the effort. see more
https://www.agingcare.com/News/The-Hidden-Dangers-of-Elder-Self-Neglect-146760.htm
Your question about legal responsibility is important. Can a family member simply walk away from someone whom they have cared for? There may be many theories of liability. Rather than write about all the bad things that could be imagined, I'd like to mention some of the resources and approaches that you could look to, for help with these difficult and frustrating circumstances.
Have you called on the Area Agency on Aging, ASAP (Aging Services Access Point) or town senior center? There may be many resources for care and assistance available to you. These agencies should provide you with approaches that can work.
Alzheimer's Association offers support groups and training for caregivers.
If you need legal authority to protect your mother's finances and health, a Conservatorship and/or Guardianship petition can bring the needs into focus and provide you, or an objective professional Guardian, with the authority to manage care and finances. There may be a charitable organization that provides guardianship services in your area.
The ASAP and/or an elder law attorney can help you identify home care reimbursement and payment programs that may be available through Medicaid, state agencies or the VA if you mother or father are veterans.
There's no denying the difficulty of the situation, but finding help to serve your mother's best interests is an accomplishment that is worth the effort. see more
Question
Applying for VA widow's benefits. Any advice?
Information about aid and attendance eligibility is here:... Information about aid and attendance eligibility is here:
https://www.agingcare.com/articles/veteran-aid-attendance-benefit-long-term-care-156656.htm
Also, search aid and attendance in the aging care.com search box for more articles. see more
https://www.agingcare.com/articles/veteran-aid-attendance-benefit-long-term-care-156656.htm
Also, search aid and attendance in the aging care.com search box for more articles. see more
Question
My husband is a veteran but only in the navy for a year before war was over. Is he still eligible for VA home...
Service dates and other eligibility information for Aid & Attendance pension is here:... Service dates and other eligibility information for Aid & Attendance pension is here:
https://www.agingcare.com/articles/veteran-aid-attendance-benefit-long-term-care-156656.htm
Also, search Aid and Attendance in the agingcare.com search box for more articles. see more
https://www.agingcare.com/articles/veteran-aid-attendance-benefit-long-term-care-156656.htm
Also, search Aid and Attendance in the agingcare.com search box for more articles. see more
Question
Is it legal to serve any legal documents to a person with dementia without their POA present?
Your state's law, and the US Constitution, have procedural rules that protect people who have diminished capacity. Your question... Your state's law, and the US Constitution, have procedural rules that protect people who have diminished capacity. Your question indicates several problems that the people at the Court may not be aware of, as they process the care provider's claim. The most efficient way to learn about your mother's rights is to hire an attorney who knows civil court procedures, collections law, and who can understand your mother's needs and disability. The attorney should be able to gather information from your mother's physician to resolve the case.
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
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
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
Can anyone tell me what a person can do to stop an executor of the will if he can't be trusted?
In my state, Massachusetts, anyone in possession of an original Will document has a duty to deliver the Will either to the Probate Court or to someone who can properly file it with Probate Court. Here is what Section 2-516 of the Massachusetts Uniform Probate Code says about Duty of Custodian of Will; Liability:
"After the death of a testator a person having custody of a will of the testator shall deliver it within thirty days after notice of the death to a person able to secure its probate and if none is known, to an appropriate court. A person who willfully fails to deliver a will is liable to any person aggrieved for any damages that may be sustained by the failure. A person who willfully refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of court."
http://www.mass.gov/courts/docs/courts-and-judges/courts/probate-and-family-court/art2.pdf
An old state law in Massachusetts provided that a person interested in the estate may initiate proceedings to compel delivery of a will to the Probate Court by a complaint. When the Probate Code was put into effect in Massachusetts, the drafters said: "that appears to be implied in the last sentence of section 2-516."
A probate and estate settlement attorney in your state can advise on how state laws can help solve your situation. see more