Category Archives: Elder Law

Can I set up a trust for my mentally handicapped sister?

Q: Can I set up a trust or something similar for my mentally challenged sister? She currently receives state insurance and cannot have more than $2000 in her bank account. Otherwise, she will lose her health benefits if she has more than that. Do you know the best way to put money away for her that won’t interfere with these benefits?

A: It sounds like she received Medicaid benefits? There are two types of special needs trusts (SNT) which can be used to maintain eligibility for Medicaid while improving a disabled person’s quality of life. They are categorized as first-party and third-party. A first-party SNT can only contain assets belonging to the disabled individual and falls into two categories; the d4A self-settled trust and the d4C pooled trust. A d4A SNT can be established by a parent, grandparent, guardian, or court. An account in a d4C pooled trust can be opened by a parent, grandparent, guardian, court, or the disabled individual. If you are thinking of establishing a SNT using your own money or someone other than your sister’s money, you will be doing the SNT. This is a very complicated area of the law and you will need the help of an experienced elder law attorney who does special needs trusts. You can locate one by going to the website of the National Academy of Elder Law Attorneys or the PA Association of Elder Law Attorneys. Be sure to ask any attorney if he or she uses SNT’s.

My name is on the title to mom’s car, what legal rights do I have?

Q: My mother has recently been diagnosed with Alzheimer’s disease and a nursing facility is a possibility. Her name as well as mine is on the title to her car. What legal rights do I have to the car at this point?

A:  It depends on the exact wording on the title. It sounds like you may possibly be joint owners but the title would have to be examined to confirm this. If there is a lien on the car from a bank or finance company, the loan would need to be paid before the car could be transferred to another owner. If there is an underlying concern here that your mother may need to apply for Medicaid, given her condition, you should consult with an elder law attorney regarding all of her assets and not just the car. She may face a Medicaid penalty for a transfer of any asset of hers within five years of applying for Medicaid. If your mother is still competent to sign legal documents and there is no lien on the car, she can sign the titled over to you. You should have her consult with an elder law attorney.

Friend abandoned in a nursing home?

Q: I have a friend who has been abandoned in a nursing home. What steps can I take to make medical decisions on her behalf? My friend suffered a heart attack and was to never wake up. She was put in a home. She has since waken up and can speak she knows peoples places emotions. Her son is in jail and her daughter is on drugs really bad no one has seen her since Christmas last year. But she has been collecting checks on her mother’s behalf. The staff can’t even let us comb her hair and they can’t get her into speech and physical therapy without her daughters consent. She is making so much progress and she could even make more with the right care. The staff says she is not ready to speak on her own care yet. I don’t want money or anything like that I want to be able to make medical decisions for her. Any help would be greatly appreciated. She is a part of my family.
A: If she is not competent to sign a Power of Attorney to you, you probably should consult with an attorney about filing a guardianship for her. The guardianship fees, expenses and attorneys fees can come out of her income and assets, and you should not have to pay.

As POA can I testify for my father at his elder abuse PFA hearing? (Verona, PA.)

Q: My father can’t testify at his own elder abuse PFA hearing due to mental incapacity, I have POA, will it be denied? My father has been physically abused and mentally abused by my younger brother. Recently, my brother is financially exploiting him too. My father is mentally incapacitated due to severe depression, Alzheimer’s disease and dementia and physical illness and he can’t testify on his own behalf. I want to file for a PFA since I have a durable power of attorney. And since I know about all the abuse and financial exploitation, I am able to testify to get the restraining order. Do you think the restraining order will be denied at the hearing in court?

A:  You cannot step into his shoes and testify him because you are his Agent on a POA. however, I think you can still prevail at the Protection From Abuse Hearing if you or someone else can give first hand testimony of the abuse-actually witnessing the abuse. I would suggest that you bring father to court so the judge can see his condition and bring a copy of the POA to show that you are the agent. I would strongly suggest having a lawyer represent him at the hearing.

Can a 7K gift to my sister exclude my mother from receiving Medicaid?

Q: Hi. Looking for assistance on the Medicaid look-back period, details below. My mom “loaned” my sister $7000.00 3 years ago. My sister said she would pay her back but who knows if she will. I know Medicaid looks back 5 years. If her money runs out, what will happen if my sister hasn’t repaid the money? They will throw her out on the street? If my sister can repay the money (or if I can and choose to do that for her), is there a specific way I have to do so? The money was just removed from my mom’s account at the bank and handed to my sister. Could I just deposit the same amount and it is ok that there is no proof where it came from? And is it 5 years from the day Medicaid would pay or 5 years from the date I am filling out the application? Can I not even apply for Medicaid till the money is repaid? (Bridgeville, PA)

A: Do not even attempt to handle this without the advice of an experienced elder law or estate attorney who understands Medicaid. You are playing with fire. It may be possible to address the “loan” even if it’s not repaid and still avoid a penalty period should your mother need to apply for Medicaid. However, that depends on many factors that are best addressed in person with an experienced elder law attorney. Generally, a gift like this can potentially exclude your mother from receiving an amount of Medicaid funding equal to the amount of the disqualifying gift. Again, seek an opinion.

 

Applying to Medicaid. Do we need to mention gifts from 2-3 years ago?

Q: Our mother is going into a nursing home and application asks for any transfers. Do we need to declare gifts from 2-3 yrs ago? She has resources for approximately one month in a Nursing home and afterwards I believe Medicaid would take over.

A: Yes, when applying for Medicaid eligibility, you need to list all transfers of any property for no consideration (gifts or under market value) in which mom had an interest for the past 5 years. Any transfers without consideration, or which the consideration (money received for sale) for her property which has not been documented, could possibly exclude her from Medicaid eligibility. You really should consult with an estate lawyer or elder law lawyer versed in Medicaid law before filling out any benefits application.

Do I need a Contract for Personal Service with my Elderly Parents?

Q: I am in the process of moving from my home in Pittsburgh of 28 yrs. to be closer to my Elderly Parents with Health Issues in Steubenville, Ohio. I have quit my job to be able to go back and forth every few weeks and sort and pack freely and my Parents are helping me by paying my bills, etc. temporarily. I am not caring for them, only getting closer in case I should need to. One Person says a caretaker contract is needed because of possible Medicare in the future, another says it shouldn’t be necessary until a certain dollar amount as a gift is surpassed. Can someone clarify please?

A: You really should consult with an Ohio elder law attorney. If your parents may need Medicaid assistance to pay for home care or nursing care in the future and an application to Medicaid may be foreseeable, you do need advice on how to draft a caretaker contract in compliance with Medicaid regulations. This way, the money paid to you as a caretaker, will not be subject to the Medicaid 5 year look back. An attorney may also advise you on other ways to shelter your parent’s assets while maintaining Medicaid eligibility.

POA Aunt won’t let grandmother leave nursing home

Q: My aunt has power of attorney for my grandmother. She is currently in a nursing home that she doesn’t want to be in. My other aunt said that she is willing to have her live at her home being as though none of my other aunts want her at their home. My aunt who is POA said no because my who wants my grandmother is Muslim and she doesn’t think its right. Is there anything my aunt can do to get her mother to live with her?

A: Outside of denouncing her Muslim faith to satisfy the other aunt, the option would be to hire an attorney and file to have either you or the Muslim aunt as guardian. If the non-Muslim aunt is not acting in the best interests of grandmother and it is medically possible for grandmother to live outside a nursing setting, then you may have a case. This option should be reviewed carefully with an attorney first.

 

Mother-in-law cannot get Medicaid

Q: My mother-in-law is 62 and has been denied Medicaid. She is diabetic and is in need of medical attention she has been here for 10 years. That is not right for a person who is sick and cannot get Medicaid.

A: More information is needed. Generally, she cannot qualify for Medicaid until she is 64, blind, or disabled. Medicaid is a welfare program so your mother would have to qualify for welfare. You can file for Social Security disability, but I am not sure if diabetes alone will qualify. You need to consult with a Social Security Disability attorney .

How do I protect mom’s assets?

 

Q: What trust should I use to protect mom’s assets if she enters long-term nursing care? How long will it take to be in effect? What else can we do?

A: If it is foreseeable that mom will run out of funds to pay for nursing care, an application for Medicaid eligibility may be necessary. Medicaid has a look back period of five years. This means that any transfer of her assets in those five years, that are done without consideration (like a gift to a child), can render her ineligible for Medicaid. A penalty would be assessed in the dollar amount of the gift. I don’t have nearly enough information to advise you here. Consult with an elder law attorney who is versed in Medicaid regulations.