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
I am concerned that because I have a pension of $1650.00 and SS of $1400.00. Will I never qualify?
You are wise to begin planning now. You're managing for three generations, and an elder law attorney can help you keep apples with... You are wise to begin planning now. You're managing for three generations, and an elder law attorney can help you keep apples with apples and oranges with oranges.
Your question about income and Medicaid eligibility requires more information. Nursing home residents can keep only a small amount of their income if Medicaid is paying the bill.
Establishing a Third Party Special Needs Trust for your child now provides a way for you to fund an inheritance for him that will not disrupt his income eligibility in the future.
An elder law attorney can also explain how establishing a (d)(4)(A) Trust for your child now will give him a place to deposit assets of his own, if that becomes necessary in the future. see more
Your question about income and Medicaid eligibility requires more information. Nursing home residents can keep only a small amount of their income if Medicaid is paying the bill.
Establishing a Third Party Special Needs Trust for your child now provides a way for you to fund an inheritance for him that will not disrupt his income eligibility in the future.
An elder law attorney can also explain how establishing a (d)(4)(A) Trust for your child now will give him a place to deposit assets of his own, if that becomes necessary in the future. see more
Question
Who do I appoint as my financial POA when I do not have family?
You are very wise to ask this question now, at a time when you are still able to express your wishes and intentions. People who outlive... You are very wise to ask this question now, at a time when you are still able to express your wishes and intentions.
People who outlive their trusted friends and family members have several options when considering who to designate as a surrogate (a person who steps into your shoes and manages your finances). Here are 3:
1 - You can establish a Trust that is managed by a financial institution. Banks and trust companies in your state may have a minimum account size, but if the value of your assets are high enough, and the trust company accepts your account, a trust officer would be responsible to manage your income and expense payments.
2 - In my state (Massachusetts) the state has provided funds to local charitable agencies, such as Jewish Family Services, and they provide social workers and attorneys who manage Probate Conservatorship accounts and Guardianships services for people who have no close family members, or people who are caught in the middle of family conflicts.
3 - Your state may have Pooled Trust account services available from a charitable organization that administers funds for people who are unable to manage their own funds. However, the charitable agency will probably require authority from your state's Probate Court in order to step up and serve your needs.
Talk with an elder law attorney in your area as soon as possible. Your local senior center or elder services agency can help you find an attorney to help. see more
People who outlive their trusted friends and family members have several options when considering who to designate as a surrogate (a person who steps into your shoes and manages your finances). Here are 3:
1 - You can establish a Trust that is managed by a financial institution. Banks and trust companies in your state may have a minimum account size, but if the value of your assets are high enough, and the trust company accepts your account, a trust officer would be responsible to manage your income and expense payments.
2 - In my state (Massachusetts) the state has provided funds to local charitable agencies, such as Jewish Family Services, and they provide social workers and attorneys who manage Probate Conservatorship accounts and Guardianships services for people who have no close family members, or people who are caught in the middle of family conflicts.
3 - Your state may have Pooled Trust account services available from a charitable organization that administers funds for people who are unable to manage their own funds. However, the charitable agency will probably require authority from your state's Probate Court in order to step up and serve your needs.
Talk with an elder law attorney in your area as soon as possible. Your local senior center or elder services agency can help you find an attorney to help. see more
Question
Can a durable POA relocate his Mother with Alzheimer's?
Does Power of Attorney address the issue of health care and treatment? Does the patient have a health care proxy and POA for health care?... Does Power of Attorney address the issue of health care and treatment? Does the patient have a health care proxy and POA for health care?
The instructions in the document tell third parties (like nursing homes, hospitals and doctors) who is authorized to make important decisions like where the patient will be cared for.
If there are conflicting instructions, or even conflicting documents, the health care providers won't know who to listen to. That's what happened in the famous case of Casey Kasem.
https://www.agingcare.com/articles/casey-kasem-case-health-care-proxy-170204.htm
Talk with an elder law attorney who can give you an objective view of what your Mother's advance directive documents say, and review any potential conflicts and problems. Starting with this step can save you from costly misunderstandings, as illustrated in this case where a parent was relocated, using the power in a Power of Attorney.
https://www.agingcare.com/articles/adult-children-sue-caregiver-176514.htm see more
The instructions in the document tell third parties (like nursing homes, hospitals and doctors) who is authorized to make important decisions like where the patient will be cared for.
If there are conflicting instructions, or even conflicting documents, the health care providers won't know who to listen to. That's what happened in the famous case of Casey Kasem.
https://www.agingcare.com/articles/casey-kasem-case-health-care-proxy-170204.htm
Talk with an elder law attorney who can give you an objective view of what your Mother's advance directive documents say, and review any potential conflicts and problems. Starting with this step can save you from costly misunderstandings, as illustrated in this case where a parent was relocated, using the power in a Power of Attorney.
https://www.agingcare.com/articles/adult-children-sue-caregiver-176514.htm see more
Question
My mother recently passed, and the nursing home refuses to return the balance in her trust to her family. What...
Did your family pay for funeral or burial, or any other expenses of administering your mother's estate? You may have priority under... Did your family pay for funeral or burial, or any other expenses of administering your mother's estate? You may have priority under your state's law to recover reimbursement. Your question indicates your Mother was a Medicaid patient. Talk with an elder law attorney, and ask about procedures for personal needs accounts in your state. You may be able to get assistance through a legal aid or senior services agency in your community.
Your question should remind all of us that the personal needs account of a Medicaid patient should be monitored by family members during the patient's lifetime, and used to provide resources, including post mortem planning. see more
Your question should remind all of us that the personal needs account of a Medicaid patient should be monitored by family members during the patient's lifetime, and used to provide resources, including post mortem planning. see more
Question
What can I do about my sister not taking care of our mom?
No one can put a price on the pain and suffering that can result from sores and neglect. To protect your Mother's health, you could... No one can put a price on the pain and suffering that can result from sores and neglect. To protect your Mother's health, you could get help from the Aging Services Access Point (ASAP) the serves your town. They can explain procedures for elder protective services.
If you are unable to hire an attorney to represent you, the protective services unit may provide legal services that would petition for Guardianship. You could decide whether you want to serve as Guardian, or have a professional appointed by the Court. Your question is serious, and the passage of time with no corrective steps can result in detriment to your mother. see more
If you are unable to hire an attorney to represent you, the protective services unit may provide legal services that would petition for Guardianship. You could decide whether you want to serve as Guardian, or have a professional appointed by the Court. Your question is serious, and the passage of time with no corrective steps can result in detriment to your mother. see more
Question
What are pros and cons of setting up a real estate trust for the home my parent owns and lives in?
The first thing we need to know is whether your parent is competent to establish a trust, and sign a deed transferring the real estate into... The first thing we need to know is whether your parent is competent to establish a trust, and sign a deed transferring the real estate into ownership of the Trustee.
It sounds like your primary motive is protecting your parent from exploitation. A trust would be an ideal instrument to shield from predators. But if your parent's competence has already slipped away, setting up a trust becomes problematic. It might be possible to take some protective steps, using a Power of Attorney, if your parent had the foresight to establish your authority in a POA document.
Your next step should be to talk with an elder law and estate planning attorney in your state, who can explain the real estate, trust, and Medicaid planning issues that affect your parent.
K. Gabriel Heiser, an Attorney, author and Medicaid asset protection expert has written a book, and many articles on Medicaid planning and trusts. Here is one of his articles on "4 Key Things to Know about Trusts and Medicaid Planning":
https://www.agingcare.com/articles/trusts-and-medicaid-planning-175509.htm see more
It sounds like your primary motive is protecting your parent from exploitation. A trust would be an ideal instrument to shield from predators. But if your parent's competence has already slipped away, setting up a trust becomes problematic. It might be possible to take some protective steps, using a Power of Attorney, if your parent had the foresight to establish your authority in a POA document.
Your next step should be to talk with an elder law and estate planning attorney in your state, who can explain the real estate, trust, and Medicaid planning issues that affect your parent.
K. Gabriel Heiser, an Attorney, author and Medicaid asset protection expert has written a book, and many articles on Medicaid planning and trusts. Here is one of his articles on "4 Key Things to Know about Trusts and Medicaid Planning":
https://www.agingcare.com/articles/trusts-and-medicaid-planning-175509.htm see more
Question
Where to find help with adult diapers?
Contact the ASAP (Aging Services Access Point) in your area for eligibility, screening and information on homecare programs available to... Contact the ASAP (Aging Services Access Point) in your area for eligibility, screening and information on homecare programs available to you. The federal government reimburses each state 50% of the cost of services provided through Waiver programs, and disposable undergarments can be included in personal care services that are provided to people who meet the clinical criteria of the program.
An elder law attorney can also help you navigate the requirements for programs in your area. see more
An elder law attorney can also help you navigate the requirements for programs in your area. see more
Question
Do nursing homes run credit check before accepting patients?
The nursing home will want to know how the care will be paid for. Talk with an elder law attorney in your state to determine the options... The nursing home will want to know how the care will be paid for. Talk with an elder law attorney in your state to determine the options for private payment and whether you are eligible for coverage from Medicare and Medicaid.
The elder law attorney can help you properly calculate and report any assets.
If you are asking on behalf of someone else, 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
A credit check would only confirm what you will already need to disclose to the nursing home, and the Medicaid agency if you apply. see more
The elder law attorney can help you properly calculate and report any assets.
If you are asking on behalf of someone else, 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
A credit check would only confirm what you will already need to disclose to the nursing home, and the Medicaid agency if you apply. see more
Question
Does Medicaid honor back-pay for personal care agreements?
Now is the time for you to talk with an elder law attorney in your state. Think for a moment about how the Medicaid system in your state... Now is the time for you to talk with an elder law attorney in your state. Think for a moment about how the Medicaid system in your state would be affected if retroactive claims were allowed from any family member who wanted back pay for past services. The system would be swamped with people claiming that the state should pay for current care services, and leave the family with assets owned by the elder.
Caregiver Contracts for family members are valid, but the agreements must be in writing, and the compensation to the caregiver must be for fair market value. If the elder later decides to apply for Medicaid, the state Medicaid agency will be asking for documentation of what was paid for.
In my state (Massachusetts) the Appeals Court decided a case in 2007 where a daughter put hundreds of hours of work into caregiving and repairing her Mother's house. The daughter claimed back pay when the house was sold, but Medicaid refused the Mother's application when she was admitted to a nursing home several years later.
The Appeals Court agreed with the Medicaid denial and took a page from HCFA Transmittal No. 64 to explain how "a transfer to a relative for care provided for free in the past is a transfer of assets for less than fair market value. However, an individual can rebut this presumption with tangible evidence that is acceptable to the State. For example, you may require that a payback arrangement had been agreed to in writing at the time services were provided." That language goes back many years.
Today, even a written agreement for retroactive payment would probably be unacceptable. Current payment for services as they are provided, under an agreement in writing, is the way to document that services are being provided at fair market value.
Your concern about the record title to your Mother's house is also important, since there are other parties who have an interest in how the real estate is owned: the mortgage company and the person who is required to pay the mortgage. A change in the home ownership would disrupt those arrangements.
An elder law attorney in your state can help you satisfy the requirements of the parties involved, including your state Medicaid agency.
The 2007 case can be accessed at the trial court law library here: http://masscases.com/cases/app/68/68massappct228.html see more
Caregiver Contracts for family members are valid, but the agreements must be in writing, and the compensation to the caregiver must be for fair market value. If the elder later decides to apply for Medicaid, the state Medicaid agency will be asking for documentation of what was paid for.
In my state (Massachusetts) the Appeals Court decided a case in 2007 where a daughter put hundreds of hours of work into caregiving and repairing her Mother's house. The daughter claimed back pay when the house was sold, but Medicaid refused the Mother's application when she was admitted to a nursing home several years later.
The Appeals Court agreed with the Medicaid denial and took a page from HCFA Transmittal No. 64 to explain how "a transfer to a relative for care provided for free in the past is a transfer of assets for less than fair market value. However, an individual can rebut this presumption with tangible evidence that is acceptable to the State. For example, you may require that a payback arrangement had been agreed to in writing at the time services were provided." That language goes back many years.
Today, even a written agreement for retroactive payment would probably be unacceptable. Current payment for services as they are provided, under an agreement in writing, is the way to document that services are being provided at fair market value.
Your concern about the record title to your Mother's house is also important, since there are other parties who have an interest in how the real estate is owned: the mortgage company and the person who is required to pay the mortgage. A change in the home ownership would disrupt those arrangements.
An elder law attorney in your state can help you satisfy the requirements of the parties involved, including your state Medicaid agency.
The 2007 case can be accessed at the trial court law library here: http://masscases.com/cases/app/68/68massappct228.html see more
Question
Would short term nursing care and medical services be subject to repayment by Medicaid?
How old is the patient? Federal Medicaid law requires recovery for Medicaid paid medical bills from a person's estate IF the recipient... How old is the patient? Federal Medicaid law requires recovery for Medicaid paid medical bills from a person's estate IF the recipient was over age fifty five (but excluding Medicare cost-sharing payments).
The estate recovery law is at:
https://www.law.cornell.edu/uscode/text/42/1396p
But there are exceptions that could be applied to protect the recipient's assets in your case, including transfer to a family member who is in disability status.
Until you talk with an elder law attorney in your state, you won't know how the circumstances in your case fit with the Federal Law and state regulations.
Information about Medicaid liens in my state (Massachusetts) is at:
https://aspe.hhs.gov/basic-report/medicaid-liens-and-estate-recovery-massachusetts see more
The estate recovery law is at:
https://www.law.cornell.edu/uscode/text/42/1396p
But there are exceptions that could be applied to protect the recipient's assets in your case, including transfer to a family member who is in disability status.
Until you talk with an elder law attorney in your state, you won't know how the circumstances in your case fit with the Federal Law and state regulations.
Information about Medicaid liens in my state (Massachusetts) is at:
https://aspe.hhs.gov/basic-report/medicaid-liens-and-estate-recovery-massachusetts see more
Question
Mom recently passed, do we continue to pay the credit cards or do we let them lapse until executor is set up?
Now is the time to visit with a Probate Attorney in your state. State law sets the rules for enforcement of debts against a decedent. ... Now is the time to visit with a Probate Attorney in your state. State law sets the rules for enforcement of debts against a decedent. Timing may be important If there are mortgage payments due on a piece of real estate. But credit card debt is a very different story. You need the advice of a Probate Attorney in your state who can explain the time line for estate settlement.
State law could provide your Mother's estate with protections that put the burden on the credit card companies to prove a debt is actually owed. If you try to make contact with your Mother's creditors yourself, you will likely set yourself at a disadvantage. Without the representation of a Probate Attorney, you won't really know what you are doing.
In my state (Massachusetts) survivors have conceded substantial amounts of money by charging ahead without legal representation. Many survivors never realize they have wasted substantial sums from an estate, until after making the mistake of proceeding without the advice of a Probate Attorney. Only a Probate Attorney in your state is competent to advise you. see more
State law could provide your Mother's estate with protections that put the burden on the credit card companies to prove a debt is actually owed. If you try to make contact with your Mother's creditors yourself, you will likely set yourself at a disadvantage. Without the representation of a Probate Attorney, you won't really know what you are doing.
In my state (Massachusetts) survivors have conceded substantial amounts of money by charging ahead without legal representation. Many survivors never realize they have wasted substantial sums from an estate, until after making the mistake of proceeding without the advice of a Probate Attorney. Only a Probate Attorney in your state is competent to advise you. see more
Question
What is the best thing to do with nursing home and Medicaid?
Your understanding about your Mom's income is correct. When Medicaid starts paying for her nursing home care, her patient paid amount... Your understanding about your Mom's income is correct. When Medicaid starts paying for her nursing home care, her patient paid amount will be all of her income, except for the small amount allowed for personal needs in your state.
But if there is equity value left in her house that is now on the market, you can set aide the funds that come from the house closing for your Moms supplemental needs, in a Pooled Trust Account. The time to talk with an Elder Law Attorney is now, so that the Medicaid application and the house closing can be coordinated. The Attorney should be aware of charities that provide Pooled Trust services in your state.
Saving the money from the real estate closing in the Pooled Trust account is especially important for your Mom. You may be able to use the funds for a geriatric care manager and care providers who can assist the nursing home in alleviating the behaviors that are prompting the need for the medications you mentioned. see more
But if there is equity value left in her house that is now on the market, you can set aide the funds that come from the house closing for your Moms supplemental needs, in a Pooled Trust Account. The time to talk with an Elder Law Attorney is now, so that the Medicaid application and the house closing can be coordinated. The Attorney should be aware of charities that provide Pooled Trust services in your state.
Saving the money from the real estate closing in the Pooled Trust account is especially important for your Mom. You may be able to use the funds for a geriatric care manager and care providers who can assist the nursing home in alleviating the behaviors that are prompting the need for the medications you mentioned. see more
Question
Is Medicaid based on both our incomes?
AgingCare.com members have posted some great answers to this question. The best advice to start with is from OldBob1936, who recommends... AgingCare.com members have posted some great answers to this question. The best advice to start with is from OldBob1936, who recommends that you first understand the difference between 1) income and 2) countable assets.
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
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
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
As POA, do I have the authority to take out my mom's money in her nursing home trust account and put it in a s...
What is the current balance of your Mom's personal needs account at the nursing home? Ask the nursing home administrator. If your Mom is a Medicaid resident and she is over Medicaid's allowable asset amount, you could use the excess assets to pay for things that she needs that are non countable.
Talk with an elder law attorney in your state, who can guide you to make the best decisions to protect your Mom, and you. see more