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
Is it worth it to pay a lawyer to help file for Medicaid?
This is a great question, and there are several good comments posted by members of our AgingCare.com community. One of the members... This is a great question, and there are several good comments posted by members of our AgingCare.com community.
One of the members mentioned that her father had "a significant monthly spend down" to qualify for Mediciad, even though her mother is still living.
This is one example of the many complexities of applying for Medicaid coverage for nursing home care. Unless both spouses need nursing home care, you shouldn't need to spend down their assets; Medicaid regulations require only that the assets be held in a way that complies with the laws and regulations in your state that protect Medicaid applicants and their spouses. Often, it takes an attorney in your state who is trained in the field to recognize all of the facts and know which regulations can help people who are going through tough times of transition.
A Committee On The Unauthorized Practice Of Law Appointed By The Supreme Court Of New Jersey issued an Opinion on May 16, 2016 to answer questions involving people in similar situations.
The New Jersey committee took a look at: "non-lawyer advisors [who] advised a family member that she could receive monies as a caregiver when the family member did not qualify for that status; advised a family member to spend down an IRA when it would have been more reasonable to purchase an annuity with those monies; advised a family member to draw down her assets when it would have been more sensible to transfer monies to a disabled child; advised a family member to transfer real estate when it would have been prudent to address the significant tax implications of that plan; and the like."
In all of those situations, you need legal advice to protect yourself and your family.
"[A]dvisors [had] also counseled people on wills and powers of attorney; on the need for guardianships and the authority to transfer assets; on the standards for Medicaid coverage; on nursing home laws; on transfers of property; on the impact of marriage and divorce; on estate administration and the elective share; and similar legal matters." The New Jersey Committee said that these non-lawyer advisors "may not provide legal advice on strategies to become eligible for Medicaid benefits, including advice on spending down resources, tax implications, guardianships, sale or transfer of assets, creation of trusts or service contracts, and the like."
Guidelines may be available in your state for decisions on whether to go with a non-lawyer application preparer, or hire an elder law attorney who understands the laws and regulations that can help you.
In 2011, another review board in Ohio came to the conclusion "that Medicaid planning requiring specialized legal training, skill, and experience constitutes the practice of law. However, especially in situations where the applicant’s income and resource levels are near the Medicaid limits, there may be some Medicaid planning scenarios involving only document review and a financial calculation." So, "whether nonattorney involvement in Medicaid planning constitutes the unauthorized practice of law must be determined on a case-by-case basis."
The Attorney General in Tennessee said people should consider "whether the legal assessments or advice at issue would require the professional judgment of a lawyer."
The Florida Bar’s Standing Committee on the Unlicensed Practice of Law heard evidence in 2015 about the types of harm caused by non-lawyer Medicaid planners, including: Denial of Medicaid eligibility, Exploitation, Catastrophic or severe tax liability, and Purchase of inappropriate financial products threatening or destroying the client’s life savings.
These results illustrate how you may not end up saving money by relying on a Medicaid application preparation service.
Read more at:
https://www.judiciary.state.nj.us/notices/2016/n160518c.pdf
http://www.floridasupremecourt.org/decisions/2015/sc14-211.pdf see more
One of the members mentioned that her father had "a significant monthly spend down" to qualify for Mediciad, even though her mother is still living.
This is one example of the many complexities of applying for Medicaid coverage for nursing home care. Unless both spouses need nursing home care, you shouldn't need to spend down their assets; Medicaid regulations require only that the assets be held in a way that complies with the laws and regulations in your state that protect Medicaid applicants and their spouses. Often, it takes an attorney in your state who is trained in the field to recognize all of the facts and know which regulations can help people who are going through tough times of transition.
A Committee On The Unauthorized Practice Of Law Appointed By The Supreme Court Of New Jersey issued an Opinion on May 16, 2016 to answer questions involving people in similar situations.
The New Jersey committee took a look at: "non-lawyer advisors [who] advised a family member that she could receive monies as a caregiver when the family member did not qualify for that status; advised a family member to spend down an IRA when it would have been more reasonable to purchase an annuity with those monies; advised a family member to draw down her assets when it would have been more sensible to transfer monies to a disabled child; advised a family member to transfer real estate when it would have been prudent to address the significant tax implications of that plan; and the like."
In all of those situations, you need legal advice to protect yourself and your family.
"[A]dvisors [had] also counseled people on wills and powers of attorney; on the need for guardianships and the authority to transfer assets; on the standards for Medicaid coverage; on nursing home laws; on transfers of property; on the impact of marriage and divorce; on estate administration and the elective share; and similar legal matters." The New Jersey Committee said that these non-lawyer advisors "may not provide legal advice on strategies to become eligible for Medicaid benefits, including advice on spending down resources, tax implications, guardianships, sale or transfer of assets, creation of trusts or service contracts, and the like."
Guidelines may be available in your state for decisions on whether to go with a non-lawyer application preparer, or hire an elder law attorney who understands the laws and regulations that can help you.
In 2011, another review board in Ohio came to the conclusion "that Medicaid planning requiring specialized legal training, skill, and experience constitutes the practice of law. However, especially in situations where the applicant’s income and resource levels are near the Medicaid limits, there may be some Medicaid planning scenarios involving only document review and a financial calculation." So, "whether nonattorney involvement in Medicaid planning constitutes the unauthorized practice of law must be determined on a case-by-case basis."
The Attorney General in Tennessee said people should consider "whether the legal assessments or advice at issue would require the professional judgment of a lawyer."
The Florida Bar’s Standing Committee on the Unlicensed Practice of Law heard evidence in 2015 about the types of harm caused by non-lawyer Medicaid planners, including: Denial of Medicaid eligibility, Exploitation, Catastrophic or severe tax liability, and Purchase of inappropriate financial products threatening or destroying the client’s life savings.
These results illustrate how you may not end up saving money by relying on a Medicaid application preparation service.
Read more at:
https://www.judiciary.state.nj.us/notices/2016/n160518c.pdf
http://www.floridasupremecourt.org/decisions/2015/sc14-211.pdf see more
Question
What to do about a sibling who is not on board about selling Mom's home?
The decision to sell a home can bring out many emotions, some of them very painful. If your Mom has an elder law attorney, consider talking... The decision to sell a home can bring out many emotions, some of them very painful.
If your Mom has an elder law attorney, consider talking with her attorney about how planning for the changing care needs in the memory loss journey.
What is the prognosis from your Mom's physicians? How long will Assisted Living continue to be suitable?
With this information, and knowledge of your Mom's finances and resources, the attorney can give you some insights on how the house (a valuable asset) fits in with long term care planning.
If your Mom might need Medicaid to pay for nursing home care in the future, there are several different approaches to the real estate ownership that can be considered now.
Once you talk with an experienced elder law attorney about the Medicaid regulations in your state, in the context of your Mom's financial situation and her potential eligibility for other benefits, you'll have more facts and information to offer your brother on the decision to sell or hold on to the property.
That could help you and him manage the very real emotions that go with this time of transition. see more
If your Mom has an elder law attorney, consider talking with her attorney about how planning for the changing care needs in the memory loss journey.
What is the prognosis from your Mom's physicians? How long will Assisted Living continue to be suitable?
With this information, and knowledge of your Mom's finances and resources, the attorney can give you some insights on how the house (a valuable asset) fits in with long term care planning.
If your Mom might need Medicaid to pay for nursing home care in the future, there are several different approaches to the real estate ownership that can be considered now.
Once you talk with an experienced elder law attorney about the Medicaid regulations in your state, in the context of your Mom's financial situation and her potential eligibility for other benefits, you'll have more facts and information to offer your brother on the decision to sell or hold on to the property.
That could help you and him manage the very real emotions that go with this time of transition. see more
Question
How do I go about having the house signed over to me?
Now is the time to talk to an elder law attorney who practices in your area. If your mother's physician is able to certify that you... Now is the time to talk to an elder law attorney who practices in your area.
If your mother's physician is able to certify that you have cared for your mother for two years, and the care you provided has saved her from an earlier nursing home admission, the house transfer could be covered by the "caregiver child" exception, protecting your mother's eligibility for Medicaid if it is needed to pay for nursing home care.
But there are regulations, details and timing factors that must be considered. Example: your mother can't claim the caregiver child exception for the house if she first moves to assisted living and then to a nursing home. And if her level of care before the stroke didn't require your live in assistance, then the years leading up to the stroke probably won't count toward the 2 years that are required. The elder law attorney can guide you to the best approach, based on the care needs and assessments of your mother's physicians and discharge planners.
Your family dynamics, such as sibling relationships mentioned by others who responded to your question today, are equally important. The elder law attorney can give you an objective view of all the things you need to consider, before a decision is made to transfer the real estate. see more
If your mother's physician is able to certify that you have cared for your mother for two years, and the care you provided has saved her from an earlier nursing home admission, the house transfer could be covered by the "caregiver child" exception, protecting your mother's eligibility for Medicaid if it is needed to pay for nursing home care.
But there are regulations, details and timing factors that must be considered. Example: your mother can't claim the caregiver child exception for the house if she first moves to assisted living and then to a nursing home. And if her level of care before the stroke didn't require your live in assistance, then the years leading up to the stroke probably won't count toward the 2 years that are required. The elder law attorney can guide you to the best approach, based on the care needs and assessments of your mother's physicians and discharge planners.
Your family dynamics, such as sibling relationships mentioned by others who responded to your question today, are equally important. The elder law attorney can give you an objective view of all the things you need to consider, before a decision is made to transfer the real estate. see more
Question
I need Medicaid spend down ideas for Mom. Anybody have suggestions?
You didn't mention where you and your Mom are on the elder care timeline. Is your Mom still at home, and you're seeking to qualify... You didn't mention where you and your Mom are on the elder care timeline. Is your Mom still at home, and you're seeking to qualify for Medicaid programs that keep people out of nursing homes? Is your Mom already in a facility, and you need to spend down before Medicaid will pay? Talk to an elder law attorney in your state who can analyze the situation for you.
You can set aside any excess assets in a pooled trust account for your Mom. Talk with an elder law attorney in your state, who is familiar with the Medicaid application. Funds deposited in a pooled trust account (also known as (d)(4)(C) trusts) can be used for any suitable purpose that assists the account beneficiary.
There is no need to spend down, if the Medicaid application is prepared properly.
The trust funds can be used to supplement care that staff in the nursing home are not able to provide, even after Medicaid starts paying for care. see more
You can set aside any excess assets in a pooled trust account for your Mom. Talk with an elder law attorney in your state, who is familiar with the Medicaid application. Funds deposited in a pooled trust account (also known as (d)(4)(C) trusts) can be used for any suitable purpose that assists the account beneficiary.
There is no need to spend down, if the Medicaid application is prepared properly.
The trust funds can be used to supplement care that staff in the nursing home are not able to provide, even after Medicaid starts paying for care. see more
Question
I'm not in hubbys will but we have joint checking and savings. Does the house we live in and bank accounts bec...
Yes, now is the time to talk with an estate planning attorney who understands the elder law issues in your state. Each state has unique... Yes, now is the time to talk with an estate planning attorney who understands the elder law issues in your state.
Each state has unique laws that grant rights and benefits to the surviving spouse. These special laws may give the surviving spouse some limited rights to set aside provisions of a spouse's will and claim the use or possession of assets, such as a house.
Rather than rely on those limited protections, the best approach for people who have remarried is: advance planning, with the help of an attorney in your state who can explain where you stand today, and how you can be protected at the time of transition. It’s best if each spouse has their own attorney to negotiate and protect the individual interests of each spouse. That protects you from unreasonable claims from family members who may try to say their parent wasn’t properly represented.
Here is a story of a couple who relied on unwritten arrangements, leaving the survivor to defend against serious claims.
https://www.agingcare.com/articles/adult-children-sue-caregiver-176514.htm see more
Each state has unique laws that grant rights and benefits to the surviving spouse. These special laws may give the surviving spouse some limited rights to set aside provisions of a spouse's will and claim the use or possession of assets, such as a house.
Rather than rely on those limited protections, the best approach for people who have remarried is: advance planning, with the help of an attorney in your state who can explain where you stand today, and how you can be protected at the time of transition. It’s best if each spouse has their own attorney to negotiate and protect the individual interests of each spouse. That protects you from unreasonable claims from family members who may try to say their parent wasn’t properly represented.
Here is a story of a couple who relied on unwritten arrangements, leaving the survivor to defend against serious claims.
https://www.agingcare.com/articles/adult-children-sue-caregiver-176514.htm see more
Question
Is probate still necessary?
Your question indicates that your parents owned everything jointly, and there is no need for Probate authority to transfer title, or obtain... Your question indicates that your parents owned everything jointly, and there is no need for Probate authority to transfer title, or obtain access to any assets.
If that's the case, the only circumstances requiring Probate Court authority would be to enforce a right or interest that your Mom may have had at the time of death, such as a personal injury claim.
As one of the community members has pointed out, the next question might be about probate avoidance for your Father. Your Father's estate will need Probate, if he is the individual owner of any assets at the time he passes. But setting up joint ownership arrangements for him involving yourself or other people can create costly problems, including income tax liability and unexpected creditors claims.
Talking with an estate planning attorney who is also aware of the elder law issues in your state, can save your family form many potential problems.
If your Father is competent to make decisions, the attorney may suggest a Living Trust as a way to avoid Probate for your Father, because legal ownership of real estate, bank accounts, stocks and bonds or any other asset is held by the Trustee of the Trust.
Your father would be the Trust "Grantor." Instructions in the Living Trust tell the Trustee how to handle and distribute the property and assets in the Trust.
ADVANTAGES: The Trust is Revocable. Trust assets can be withdrawn and the Trust can be changed and even revoked, without needing approval from a Probate Court. Upon death of the Grantor, the Trusts becomes irrevocable.
The Living Trust can also save survivors from paying capital gains taxes on stocks, bonds and real estate that has appreciated in value.
DISADVANTAGES: Because it is Revocable, the Living Trust assets are still owned by the Grantor, and will be subject to creditors. The assets will be countable if your Father ever needs Medicaid benefits to pay for nursing home care in a nursing home.
The Living Trust is not the only option to consider. An estate planning - elder law attorney in your state can analyze your Father's health and financial circumstances, and explain whether an irrevocable trust is an option for avoiding probate and obtaining Medicaid eligibility in the future. Your Father’s health is a key factor in this conversation; even if the Irrevocable Trust complies with Medicaid regulations, any transfers into the Trust are subject to a 5 year look back period. see more
If that's the case, the only circumstances requiring Probate Court authority would be to enforce a right or interest that your Mom may have had at the time of death, such as a personal injury claim.
As one of the community members has pointed out, the next question might be about probate avoidance for your Father. Your Father's estate will need Probate, if he is the individual owner of any assets at the time he passes. But setting up joint ownership arrangements for him involving yourself or other people can create costly problems, including income tax liability and unexpected creditors claims.
Talking with an estate planning attorney who is also aware of the elder law issues in your state, can save your family form many potential problems.
If your Father is competent to make decisions, the attorney may suggest a Living Trust as a way to avoid Probate for your Father, because legal ownership of real estate, bank accounts, stocks and bonds or any other asset is held by the Trustee of the Trust.
Your father would be the Trust "Grantor." Instructions in the Living Trust tell the Trustee how to handle and distribute the property and assets in the Trust.
ADVANTAGES: The Trust is Revocable. Trust assets can be withdrawn and the Trust can be changed and even revoked, without needing approval from a Probate Court. Upon death of the Grantor, the Trusts becomes irrevocable.
The Living Trust can also save survivors from paying capital gains taxes on stocks, bonds and real estate that has appreciated in value.
DISADVANTAGES: Because it is Revocable, the Living Trust assets are still owned by the Grantor, and will be subject to creditors. The assets will be countable if your Father ever needs Medicaid benefits to pay for nursing home care in a nursing home.
The Living Trust is not the only option to consider. An estate planning - elder law attorney in your state can analyze your Father's health and financial circumstances, and explain whether an irrevocable trust is an option for avoiding probate and obtaining Medicaid eligibility in the future. Your Father’s health is a key factor in this conversation; even if the Irrevocable Trust complies with Medicaid regulations, any transfers into the Trust are subject to a 5 year look back period. see more
Question
Is there a difference between guardianship and conservatorship?
Guardianship or Conservatorship becomes necessary if people in your family object to what you are doing (or not doing) for the person you... Guardianship or Conservatorship becomes necessary if people in your family object to what you are doing (or not doing) for the person you are protecting under the POA and health care document.
Guardianship or Conservatorship might also be needed when the POA or Health Care document doesn't include powers that a third party wants to see in the document.
Guardianship and Conservatorship are court proceedings that may involve filing fees, annual accountings and reviews by Court appointed special guardians.
An elder law attorney in your state can review your circumstances and documents, and explain how the procedures work in your state. see more
Guardianship or Conservatorship might also be needed when the POA or Health Care document doesn't include powers that a third party wants to see in the document.
Guardianship and Conservatorship are court proceedings that may involve filing fees, annual accountings and reviews by Court appointed special guardians.
An elder law attorney in your state can review your circumstances and documents, and explain how the procedures work in your state. see more
Question
Do we pay capital gains taxes on our part once the house sells?
Who is/are the Successor Trustee(s) for your Mom’s “Family Trust”? The Successor Trustee is the person(s) who will have authority to... Who is/are the Successor Trustee(s) for your Mom’s “Family Trust”? The Successor Trustee is the person(s) who will have authority to convey ownership of Trust property.
You mentioned that your Mom was the Trustee during her lifetime. Talk with an Estate Settlement Attorney and your tax accountant to review the Trust document, so you can better understand the purposes your Mom had in mind when she signed the Trust document.
If the Trust was a revocable trust (“Revocable Living Trust”) that she intended simply as a way to avoid probate, your attorney and accountant will tell you that she still owned the real estate at death, so there will be a “step up” in basis for you and the other beneficiaries of the Trust. That means (under current tax law) that you get a free pass on any capital gains on the increased value of the property.
If the Trust was Irrevocable, and the house was transferred as a “present interest” gift that your Mom gave away when she was alive, the attorney and accountant will tell you more about capital gains.
Even irrevocable trusts provide a “step up” in basis if they include clauses that fit the “Grantor Trust Rules.” The IRS considers the property owned in a Grantor Trust to be the property of the Grantor, and (for tax purposes) that would keep ownership with the Grantor right up until the time of death.
So, your liability for capital gains tax depends on the terms of the Trust. Now is the time to find out how the Trust was written, as you decide what to do with the property. see more
You mentioned that your Mom was the Trustee during her lifetime. Talk with an Estate Settlement Attorney and your tax accountant to review the Trust document, so you can better understand the purposes your Mom had in mind when she signed the Trust document.
If the Trust was a revocable trust (“Revocable Living Trust”) that she intended simply as a way to avoid probate, your attorney and accountant will tell you that she still owned the real estate at death, so there will be a “step up” in basis for you and the other beneficiaries of the Trust. That means (under current tax law) that you get a free pass on any capital gains on the increased value of the property.
If the Trust was Irrevocable, and the house was transferred as a “present interest” gift that your Mom gave away when she was alive, the attorney and accountant will tell you more about capital gains.
Even irrevocable trusts provide a “step up” in basis if they include clauses that fit the “Grantor Trust Rules.” The IRS considers the property owned in a Grantor Trust to be the property of the Grantor, and (for tax purposes) that would keep ownership with the Grantor right up until the time of death.
So, your liability for capital gains tax depends on the terms of the Trust. Now is the time to find out how the Trust was written, as you decide what to do with the property. see more
Question
If someone is receiving home health aide services; through the VA hospital, can he still apply for Medicaid as...
Yes, your step father can be reimbursed for home care he pays for out of pocket. The VA looks at monthly income. If unreimbursed medical... Yes, your step father can be reimbursed for home care he pays for out of pocket.
The VA looks at monthly income. If unreimbursed medical expenses are equal to your household income, you are entitled to the maximum Aid & Attendance benefit. If considered a medical expense, the family member could be paid for the value of some of the hours they devote to your step father.
The VA also looks at the value of "liquid assets" like cash, stocks, IRA, 401k, other tax-deferred income, bonds, mutual funds, art, coins, stamps, and collectibles. The Aid and Attendance pension regulations consider whether some or all of the claimant’s estate should be used for the claimant’s care. The VA considers:
whether the property can be readily converted into cash at no substantial sacrifice and life expectancy.
Get help with the application preparation from your town's veteran agent or a service provider that specializes in aid and attendance. Talking with an elder law attorney near your home would also be beneficial. see more
The VA looks at monthly income. If unreimbursed medical expenses are equal to your household income, you are entitled to the maximum Aid & Attendance benefit. If considered a medical expense, the family member could be paid for the value of some of the hours they devote to your step father.
The VA also looks at the value of "liquid assets" like cash, stocks, IRA, 401k, other tax-deferred income, bonds, mutual funds, art, coins, stamps, and collectibles. The Aid and Attendance pension regulations consider whether some or all of the claimant’s estate should be used for the claimant’s care. The VA considers:
whether the property can be readily converted into cash at no substantial sacrifice and life expectancy.
Get help with the application preparation from your town's veteran agent or a service provider that specializes in aid and attendance. Talking with an elder law attorney near your home would also be beneficial. see more
Question
Why would a nursing home require a full copy of a will before a patient is admitted?
Medicaid may require a copy of any Trust documents that pertain to the applicant. For example, if the applicant has created a Trust, is... Medicaid may require a copy of any Trust documents that pertain to the applicant.
For example, if the applicant has created a Trust, is acting as a Trustee, or is the Beneficiary of a Trust, this information is relevant to the review of assets that the Medicaid case worker performs when determining eligibility. I don't know why a nursing home would need a copy of Trust.
Medicaid would not need a copy of the applicant's Will to determine eligibility. Likewise, I don't know why the nursing home would need a copy of their resident's Will.
The only situation I can think of where a Will would be required for disclosure to Medicaid would be if someone else's Will created a Testamentary Trust for the benefit of the applicant. That type of Trust can be carefully written to provide an inheritance for a surviving spouse and other family members, without disqualifying the spouse from Medicaid.
An article discussing the idea is here:
https://www.agingcare.com/articles/Medicaid-vs-Inheritance-192510.htm see more
For example, if the applicant has created a Trust, is acting as a Trustee, or is the Beneficiary of a Trust, this information is relevant to the review of assets that the Medicaid case worker performs when determining eligibility. I don't know why a nursing home would need a copy of Trust.
Medicaid would not need a copy of the applicant's Will to determine eligibility. Likewise, I don't know why the nursing home would need a copy of their resident's Will.
The only situation I can think of where a Will would be required for disclosure to Medicaid would be if someone else's Will created a Testamentary Trust for the benefit of the applicant. That type of Trust can be carefully written to provide an inheritance for a surviving spouse and other family members, without disqualifying the spouse from Medicaid.
An article discussing the idea is here:
https://www.agingcare.com/articles/Medicaid-vs-Inheritance-192510.htm see more
Question
If my mom should pass away in a nursing home while waiting for medical approval, do we owe the nursing homes c...
You would be well served by talking with an elder law attorney in your state who is able to help you determine whether your mom was... You would be well served by talking with an elder law attorney in your state who is able to help you determine whether your mom was eligibility for Medicare (was she discharged from a hospital to the nursing facility?), and/or prepare the application and supporting information needed to qualify her for Medicaid coverage.
Completing the Medicaid application properly can save time and expense for you, and the nursing home business office. If your Mom was eligible for Medicaid, the nursing home can be reimbursed by Medicaid. Otherwise, assets remaining in your Mom's estate must be used to pay for the care. The elder law attorney can help you properly calculate and report any estate administration expenses that have priority in settling your Mom's estate.
Federal Medicare and Medicaid law says that family members cannot be required to sign as a “Responsible Party” for payment of nursing home care costs. 42 USC §1396r(c)(5)(A)(ii). Some facilities have asked family members to “volunteer” to act as a responsible party. The federal law says: “a nursing facility must (ii) not require a third party guarantee of payment to the facility as a condition of admission (or expedited admission) to, or continued stay in, the facility.”
To read the nursing home law:
https://www.law.cornell.edu/uscode/text/42/1396r
Scroll down to §1396r(c)(5)(A)(ii)
There are also state laws and regulations the prohibit a facility from requiring a resident to provide a third party guarantee of payment to the facility. Example from my state, Massachusetts:
http://www.mass.gov/ago/docs/regulations/940-cmr-4-00.pdf see more
Completing the Medicaid application properly can save time and expense for you, and the nursing home business office. If your Mom was eligible for Medicaid, the nursing home can be reimbursed by Medicaid. Otherwise, assets remaining in your Mom's estate must be used to pay for the care. The elder law attorney can help you properly calculate and report any estate administration expenses that have priority in settling your Mom's estate.
Federal Medicare and Medicaid law says that family members cannot be required to sign as a “Responsible Party” for payment of nursing home care costs. 42 USC §1396r(c)(5)(A)(ii). Some facilities have asked family members to “volunteer” to act as a responsible party. The federal law says: “a nursing facility must (ii) not require a third party guarantee of payment to the facility as a condition of admission (or expedited admission) to, or continued stay in, the facility.”
To read the nursing home law:
https://www.law.cornell.edu/uscode/text/42/1396r
Scroll down to §1396r(c)(5)(A)(ii)
There are also state laws and regulations the prohibit a facility from requiring a resident to provide a third party guarantee of payment to the facility. Example from my state, Massachusetts:
http://www.mass.gov/ago/docs/regulations/940-cmr-4-00.pdf see more
Question
Do I need guardianship?
Guardianship or Conservatorship becomes necessary if people in your family object to what you are doing (or not doing) for the person you... Guardianship or Conservatorship becomes necessary if people in your family object to what you are doing (or not doing) for the person you are protecting under the POA and health care document.
Guardianship or Conservatorship might also be needed when the POA or Health Care document doesn't include powers that a third party wants to see in the document.
Guardianship and Conservatorship are court proceedings that may involve filing fees, annual accountings and reviews by Court appointed special guardians.
An elder law attorney in your state can review your circumstances and documents, and explain how the procedures work in your state. see more
Guardianship or Conservatorship might also be needed when the POA or Health Care document doesn't include powers that a third party wants to see in the document.
Guardianship and Conservatorship are court proceedings that may involve filing fees, annual accountings and reviews by Court appointed special guardians.
An elder law attorney in your state can review your circumstances and documents, and explain how the procedures work in your state. see more
Question
How to gain guardianship of parent in nursing facility when stepfather has POA?
Guardianship is the path you would take if you feel called to care and manage for your mother. If the spouse assents (and there are no... Guardianship is the path you would take if you feel called to care and manage for your mother.
If the spouse assents (and there are no objections from your siblings if you have any) the way would be clear for the Court to consider your Petition for Guardianship.
If there are objections, you would have to decide whether to go forward with an adversarial proceeding.
The best way to start is with an elder law attorney in your state who could approach other family members with requests for agreement and assent, rather than controversy. see more
If the spouse assents (and there are no objections from your siblings if you have any) the way would be clear for the Court to consider your Petition for Guardianship.
If there are objections, you would have to decide whether to go forward with an adversarial proceeding.
The best way to start is with an elder law attorney in your state who could approach other family members with requests for agreement and assent, rather than controversy. see more
Question
If a person is on memory medication are they considered capable of revoking a POA and signing a new one?
There are circumstances when Power of Attorney is not adequate to protect a person's interests. People who have difficult family... There are circumstances when Power of Attorney is not adequate to protect a person's interests. People who have difficult family dynamics should consider establishing a Trust instrument. In a Trust, you give specific instructions, and place responsibility for any assets in the hands of a fiduciary (person or financial institution responsible for another person's money and property).
I know this advice about Trusts may not help in your situation, where the Power of Attorney document should be protecting a person who had expected it would be sufficient. Revoking the POA and creating a new instrument depends on whether a notary and witnesses can certify that the person is competent and knows what he is doing. Even if there are "lucid" moments, when the person is aware of the significance of what he is doing, the facts you are describing indicate there are people who would object and contest the changes.
So, your facts are heading toward Court involvement if changes are made. The best way to avoid costly litigation later might be to go to Probate Court now and petition for Conservatorship of Limited Conservatorship. The person you want to protect may even be able to assent to having the Court supervise his assets. A Conservator provides accounts to the Court and the person he is protecting.
Your first step is to talk with an attorney in your state who knows the rules and procedures, and can explain to you who is considered an interested person who is qualified to file a Petition for Conservatorship. see more
I know this advice about Trusts may not help in your situation, where the Power of Attorney document should be protecting a person who had expected it would be sufficient. Revoking the POA and creating a new instrument depends on whether a notary and witnesses can certify that the person is competent and knows what he is doing. Even if there are "lucid" moments, when the person is aware of the significance of what he is doing, the facts you are describing indicate there are people who would object and contest the changes.
So, your facts are heading toward Court involvement if changes are made. The best way to avoid costly litigation later might be to go to Probate Court now and petition for Conservatorship of Limited Conservatorship. The person you want to protect may even be able to assent to having the Court supervise his assets. A Conservator provides accounts to the Court and the person he is protecting.
Your first step is to talk with an attorney in your state who knows the rules and procedures, and can explain to you who is considered an interested person who is qualified to file a Petition for Conservatorship. see more
Question
How can I obtain a copy of my fathers Power of Attorney?
Talking with an elder law attorney in your state could give you several options to obtain the information you need, starting with low cost,... Talking with an elder law attorney in your state could give you several options to obtain the information you need, starting with low cost, conciliatory approaches, and ranging up to more expensive formal legal solutions. see more
Question
What are the legal requirements for notifying next of kin of a death?
The answer to your question depends on a number of things. Are you a fiduciary (person responsible to manage assets) named in the... The answer to your question depends on a number of things. Are you a fiduciary (person responsible to manage assets) named in the decedent's Trust or Will? Are you aware of assets that have been designated to pass to other people?
There are probate and trust laws that protect surviving relatives and require notice. The only way to be sure about your legal responsibilities is to consult an attorney in your state who will listen to your circumstances, and explain how the law and regulations apply.
Beyond the legalities, other posters have pointed out the moral and ethical duties that we have to kindred who share in our lineage. How you handle the situation will be remembered for years to come.
Some in some situations, survivors are justifiably concerned for their own safety and well being. Here again, a probate attorney can advise you. Using an intermediary, there are ways to provide notification and information to others, without putting yourself in direct contact with someone who may not want to deal with. see more
There are probate and trust laws that protect surviving relatives and require notice. The only way to be sure about your legal responsibilities is to consult an attorney in your state who will listen to your circumstances, and explain how the law and regulations apply.
Beyond the legalities, other posters have pointed out the moral and ethical duties that we have to kindred who share in our lineage. How you handle the situation will be remembered for years to come.
Some in some situations, survivors are justifiably concerned for their own safety and well being. Here again, a probate attorney can advise you. Using an intermediary, there are ways to provide notification and information to others, without putting yourself in direct contact with someone who may not want to deal with. see more
Question
For a senior (88), what will provide immediate asset protection and avoid probate?
What types of assets does the person own? Your question requires an understanding of the categories of assets. There are simple ways to... What types of assets does the person own? Your question requires an understanding of the categories of assets. There are simple ways to avoid probate of some types of assets using beneficiary designations on the account records kept by the financial institution or custodian; other asset categories (like real estate) require careful consideration. Don't try to transfer real estate without professional counsel. Let an attorney take responsibility for protecting the owner's interests.
Your question indicates an interest in asset protection. If this means protecting assets from financial predators and scammers, fiduciary services of a Trustee can establish a fire wall of protection.
If your question is asking about protecting assets from long term care expenses, you should hire an elder law attorney who understands Medicaid eligibility rules, and is committed to protect the elder's quality of life as a first priority. see more
Your question indicates an interest in asset protection. If this means protecting assets from financial predators and scammers, fiduciary services of a Trustee can establish a fire wall of protection.
If your question is asking about protecting assets from long term care expenses, you should hire an elder law attorney who understands Medicaid eligibility rules, and is committed to protect the elder's quality of life as a first priority. see more
Question
I am Beneficiary, Successor, to property left. What can I do to seal title?
Your questions cover many areas of Probate and real estate law, and you can’t get good answers until you consult with an attorney in your... Your questions cover many areas of Probate and real estate law, and you can’t get good answers until you consult with an attorney in your state who understands all the circumstances.
You say that you were given the house. How? In a Will? Trust? Life Estate Deed conveyance? You also mention that there is a 2nd mortgage and back taxes. Are you setting yourself up for financial problems by accepting ownership of the property? A careful look at the encumbrances (debts) on the real estate is required, before you make a decision about what to do next.
If the property is encumbered by substantial debt, it may not be worth it for other people to contest your ownership, if you do have claim for ownership. But you won’t know where you stand until you get professional legal advice. see more
You say that you were given the house. How? In a Will? Trust? Life Estate Deed conveyance? You also mention that there is a 2nd mortgage and back taxes. Are you setting yourself up for financial problems by accepting ownership of the property? A careful look at the encumbrances (debts) on the real estate is required, before you make a decision about what to do next.
If the property is encumbered by substantial debt, it may not be worth it for other people to contest your ownership, if you do have claim for ownership. But you won’t know where you stand until you get professional legal advice. see more
Question
As a POA, is it absolutely required that I give deadbeat siblings updates on my mother in-law?
Does the Power of Attorney document include a clause that explains who has the Right to Receive an Accounting? A well drafted POA will... Does the Power of Attorney document include a clause that explains who has the Right to Receive an Accounting? A well drafted POA will include a direction to the agent (attorney-in-fact) that says in plain English who has the right to get information, and how often.
This is another example of why everyone reading this should hire an attorney who knows and understands the client and their family members, when preparing to sign their POA. Form documents simply don’t provide the directions that are needed in many situations, such as difficult family dynamics.
In your case, you could consult an elder law attorney in your state who will review your mother-in-law’s POA, and explain the best practices for accounting for your mother-in-laws funds. If you keep good records, in a format that is easily understood, there is no reason you should be worrying about unreasonable requests from people who are not helping with care. see more
This is another example of why everyone reading this should hire an attorney who knows and understands the client and their family members, when preparing to sign their POA. Form documents simply don’t provide the directions that are needed in many situations, such as difficult family dynamics.
In your case, you could consult an elder law attorney in your state who will review your mother-in-law’s POA, and explain the best practices for accounting for your mother-in-laws funds. If you keep good records, in a format that is easily understood, there is no reason you should be worrying about unreasonable requests from people who are not helping with care. see more
Is Medicaid based on both our incomes?
1) Income is the amount of money that comes in every month. If your wife needs Medicaid, you keep all of your income + plus you also keep her income if the total income amount is below the "Minimum Monthly Maintenance Needs Allowance." But you may be able to keep more than that monthly amount, if you can prove you need it to pay your living expenses. As "gladimhere" explained, the Medicaid regulations are intended to help you "stay in your home and pay for what you need."
2) Countable assets are what the regulations allow you to keep with no questions asked. Your state has a baseline figure for countable assets. But even if you own more than that figure, the amount of countable assets can always be adjusted by arranging them properly, so they comply with your state's Medicaid regulations.
Some of the other people who posted here mentioned some asset ideas that might, or might not, apply to your situation. You won't know until you talk with an elder law attorney in your state who can look at your income and assets, and explain how they fit in to the Medicaid regulations.
Read more about Minimum Monthly Maintenance Needs Allowance:
https://www.medicaid.gov/medicaid-chip-program-information/by-topics/eligibility/downloads/2016-ssi-and-spousal-impoverishment-standards.pdf see more