Category Archives: Elder Law

Is my mom responsible for her credit card bill when going on Medicaid and in nursing care?

Q: Is my mother responsible for a credit card bill when she will be put into a nursing home in a couple of days? Medicaid will be taking her small SS and retirement to pay for the home. She will have absolutely no money to pay for the credit card balance. She has absolutely no assets and the card is in her name only. Can she just inform the company and let the balance go?

A: Basically. Yes, if what you are saying is correct her money will be spent down to the level permitted in her personal care account at the nursing home, under Medicaid regulations. They can sue her but won’t collect because she is indigent and her personal care account is a protected asset. They can bring a claim against her estate when she dies but their claim would be behind, Medicaid, and others. It is likely that there will be no estate when she dies. If for some reason there is money remaining when she dies, Medicaid and other priority claims take their share, for example, for taxes, administrator fees, lawyer’s fees. I would inform the credit card company of the situation and send them any paperwork if they ask. If they keep pestering you, change your phone number. Sometimes, these big credit card companies just don’t get it and spend thousands of dollars pursuing claims against people who are penniless or who have even been dead for years.

84 year old friend needs a power of attorney

Q: 84-year old friend was harmed by fall and needs 24-7 caregivers. She has long term insurance policy. She needs a power of attorney for healthcare and finances. For me to fill out an insurance policy claim form on her behalf, she must give me power of attorney for health care and for finances. Her competence is questionable.

A: She needs to be competent to execute a Power of Attorney. The standard for a Principal’s competency required for a POA is higher than the competency level needed for a will. You need to confirm whether she is competent. You can do this by asking her doctor, if he will tell you, or take her to a lawyer who can assess her competency. My advice is to have her hire the lawyer and have him or her represent your friend, and not you.

Can the nursing home take 95% of my husband’s income?

Q: My husband was recently placed in a nursing home, and now they are taking 95% of his retirement is this legal. As his spouse what is my recourse, since I still need to live in the home and cannot maintain it on my income alone. (Jefferson Hills, PA)

A: From your question, I am uncertain if your husband’s income is going to Medicaid pursuant to a standard Medicaid formula as to how much the institutional spouse receives and how much the community spouse (you) receives. 95% seems high to me. If this is the nursing home that is intercepting his money and it is not going to Medicaid, then I think you should consult with an elder lawyer or estate lawyer versed in Medicaid law to review your marital income to determine how this is happening and other options you may have including an application to Medicaid.

 

Will my mother be stuck with a credit card bill when she has no money?

Q: Is my mother responsible for a credit card bill when she will be put into a nursing home in a couple of days? Medicaid will be taking all her small SS and retirement to pay for the home. She will have absolutely no money to pay for the credit card balance. She has absolutely no assets and the card is in her name only. Can she just inform the company and let the balance go?

A: Basically, they can sue her but will never collect, assuming as you say she has no money or real property. They can bring a claim against her estate when she dies but they would be behind the boys from Medicaid. If there is an estate when she dies and if there is money remaining after Medicaid takes their share, and other priority claims take their share before the credit card company. These priority claims are for taxes, administrator fees, lawyer’s fees and medical expenses incurred for services within six months of death. If any money remains after that, the credit card can see the estate for the balance.

 

I want to get mom’s house in my name but there are many legal issues

Q: My 83 yr old mom is in a health care facility and I want to get her home. There are many legal issues I need advice on. In January, our three story home suffered severe water damage by thawed water pipes in the attic and its taken four months to get the damaged materials out (inc. lead materials). I was sent a check payable to mom & her mortgage holder. I don’t know how to be sure that we’re getting contractual entitled benefits. I believe that there are circumstances going on that I don’t agree with. I need help to understand how to get the benefits she’s entitled to. FAST!! I’m in search of contractors now. They will be replacing walls & floors, possibly all appliances, for 3 floors in the back half of the house. That’s a lot of work. I just don’t know what detours the insurance company will send me to get everything

A: More information is needed. As long as mom is competent, and it is her desire, she can transfer ownership of her house to you by signing a deed. However, there other issues lurking out there that you need to be aware of. If she is receiving Medicaid, or may likely need to apply for Medicaid within the next 5 years, a transfer of the home to you for under fair consideration could result in her being ineligible for Medicaid. Plus, this is mom’s home. She may need to sell the home to pay for nursing care. Does she want you to have the home even if it means she cannot live comfortably in a facility of her choosing? In addition, mom will lose her Homestead Act exclusion for real estate taxes as well as any senior citizens discounts. Furthermore, is mom aware that any judgments against you will result in an automatic lien on the house if it is in your name? If you are having difficulty in dealing with insurance people and contractors, you may want to consider having mom sign a Power of Attorney over to you, either a specific POA or a General Durable POA, assuming she is competent. I think you could benefit greatly by consulting with an attorney.

 

90 year old deeded me his two houses.

Q: I take care of a 90-year-old man. He gifted me his 2 houses. His children are suing me in probate to get the houses back. But now they filed a removal petition on me. My question is my name is on the deed can they have me kicked out of the property. (Versailles, PA)

A: Yes, it is possible that you can be removed from the home if a court order states to so. It is possible that the deed could be vacated or rescinded. You would be notified of the hearing and allowed to participate as a party. The children would have to prove in court that their father deeded this home to you when he was mentally incompetent or that you exercised some sort of extreme influence or coercion over him to get him to sign the deeds. You really should consult with an attorney to see if this is defensible. Criminal charges for elder abuse are a possibility. It may not be an easy case for them to prove in court.

Can we get an order for our brother to stop bullying my mother?

Q: Can we get a restraining order against our brother for bullying my mom for money. She is 85 and has given him over $100,000.00 My brother shows up at her house and won’t leave until he gets money. Mom feels intimidated and says he won’t leave. She says she is being punished if we get on her accounts with her to stop this. Any other ideas how to stop him if we can’t get a restraining order?

A: Mom can do this if she wishes, and you can assist her. She would need to file for a Petition From Abuse Act hearing. If she is mentally incompetent, you will need to seek a guardianship of her so you or another family member can file for her. I think the best thing to do, and I know it is not easy, but is to have a family talk with the brother to let him know what damage he is creating and to lay off, or legal remedies will be pursued. A lawyer could guide you through this stressful and complicated family situation which involves criminal, civil and family laws.

 

Can Medicaid take a home in a Revocable Living Trust?

Q: A parent is now receiving Medicaid. When that individual passes on can Medicaid take their home if they put their home in a revocable living trust?

A: If the home is subject to the claim, which could be for several reasons (in the recipient’s name, transferred without fair consideration within 5 years of application for benefits, no surviving spouse or eligible child living in the home), then yes. Generally, a revocable living trust will provide no protection from the claim. I would consult with an attorney regarding the specific facts.

Can my mom sell grandmother’s belongings to pay for her care?

Q: Grandmother has dementia. Been in nursing home for 5 years. Her money is gone due to hospital bills, nursing home and necessities she needs there as well as meds. Can my mom sell her belongings to pay for her continued care and hospital bills?  My uncles have threatened to sue her if she does. As well as demanded an account of where her money went as well as demanding to see the will that the lawyer has.  Can the sue her for selling her things to pay the hospital? And can they threaten to sue her if she doesn’t get the lawyer to turn over a copy if the will. They are claiming my mom has stolen my grandmother’s money. The apparently thought my grandparents were rich when my grandfather died and they were. They “feel” there should have been hundreds of thousands of dollars when he died. When in reality, there was less than $50,000. Nursing home and hospital/ doctor bills ate that. We provide her diapers and hygiene products gloves and snacks. Can they do this to my mom when they have provided little to no help?

A: If you are doing nothing wrong you shouldn’t have any worries. However, you do need to document these expenditures. Additionally, it would benefit you greatly to seek the advice of your attorney or an attorney versed in Medicaid law. You may need to apply for Medicaid benefits and an attorney can guide you on the process and at the same time prepare you on how to deal with these allegations. With all of these expenditures documented and organized all of your efforts will be accounted for. In the event the brothers find a lawyer who will file for an accounting, you will be able to deal with the issue before it goes to court.

Can we use video to monitor caretakers for our mother?

Q: My mother has dementia and we have hired bonded, trained, insured caregivers to provide support for her daily needs. We suspect that theft and possible abuse may be occurring. As a deterrent, we would like to install a “very plainly visible” home “video-only” surveillance system. What are the legal requirements of doing so with non-family members regularly in the home?

A: My thoughts are that if they are aware they are being recorded by video, it is not a crime. Have a lawyer draft a release as part of their employment contract. It would basically state that they acknowledge and understand that they are subject to video surveillance and they release you from all civil and criminal liability related to such surveillance.