Category Archives: Elder Law

What do I need to do to prove my father incompetent?

Q: He has moderate to severe Alzheimer’s. I have durable POA.He is becoming more paranoid. He lives with me and my family and I currently care for him full time. He speaks more frequently about taking out all his 401k money so he can see it and use it on a moment’s notice, sell his house and move out of ours. He is not capable of cooking, taking his meds, or transporting himself very well (as he has severe arthritis in his knee and uses a power chair almost exclusively. He has no driver’s license and continues to insist he can drive and will not relinquish his car. He is only fully lucid about 10% of the time.

A: The General Durable Power of Attorney is an extremely effective and cost efficient document to assist another person with their affairs. However, when that person becomes out of control, resistant and puts themselves or their assets at risk, you may need to file for a guardianship. This will involve obtaining an opinion from his treating physician that your father is unable to manage his own affairs. You really need to sit down with an attorney that does guardianships and review all of the information.

Family members not contributing to mother’s caretaking

Q: Is there any way to protect yourself from family who is not contributing financially or giving relief to family member who is caregiver? Matriarch suffered a stroke. Youngest child (Caregiver), who lives with her and is providing most care, day and night. He is 54. Sister has deed on house. She is providing him with some financing, but, not much physical relief. Older brother will not pitch in unless his name is on the deed, but feels the right to come over whenever he wants to give orders. Caregiver is responsible for taking care of her at night, and on days when he is not working. But Caregiver must pay an individual to come in and sit with her while he goes to work. He is exhausted and almost at the end of his rope. Can anything be done to force the family to assist in a more responsible manner?

 

A: No family member is legally obligated to care for another. Some states do have filial responsibility statutes which make certain next of kin financially responsible for other family members who are indigent. PA does. This doesn’t sound like your concern, at least at this point. If the caretaker is financially burdened by his role, he may want to discuss filing with the court to be appointed the Matriarch’s guardian. If so appointed, he could earn a fee for his services and/or hire service providers and caretakers to ease the burden. All of these expenses would be paid from the Matriarch’s funds. Of course, in these situations, the guardian has to keep a running account of all of the money he or she spends as the court now has jurisdiction. Often in these situations, one family member bears the burden more than others. If the situation cannot be worked out fairly in an informal manner, a guardianship may be the answer. In addition, there are other issues you need to be aware of such as Medicaid. You need to consult with an attorney and provide him or her with all of the facts.

If I move from PA to WVA, can I sell my home?

 

Q: If I receive SSI and Medicaid in Texas and want to sell my home in Clairton and move to West Virginia, can I spend the money outside of PA? I was told after my husband died that if I sold my home I had to spend the money in PA.

A: You really need to have an attorney review your entire situation. Although a federal program, every state has different rules for Medicaid. You will need to qualify for Medicaid in WVA. You will need to report the home sale to Medicaid wherever you live. I am not sure if you or your husband are receiving SSI based on your question so again, please meet an attorney in WVA, assuming you are moving there.

Will an unknown pension disqualify Dad from his Medicaid benefits?

Q: My dad has re-qualified for Medicaid this April. An unknown pension has surfaced that dad never knew he had. Now he will get 20 years of payments. Will this disqualify him from Medicaid or can the money be moved under the Medicaid Law?

A: You need to meet with an elder lawyer versed in Medicaid law immediately. You can shelter some of this income but more specific information is needed to be known as to how to proceed. A personal care contract and a special needs trust, come to mind as possibilities.

Can father refuse medical treatment?

Q: Can my father, who is 95, in end stage renal failure but of sound mind, request that his pacemaker be deactivated. The cardiologist has refused. Can he be compelled?

A: He can request, but I doubt if a cardiologist would open himself up to potential litigation by doing so. The doctor took a Hippocratic Oath to sustain life. If such a move is likely to result in death to the patient it is doubtful the physician would put himself in an almost Dr. Kevorkian situation. Is there a Living Will in place? Did your father execute one in the past? If this documents exists, get a copy to the doctor and discuss life sustaining treatment with him.

Spouse is ill. Lots of questions.

Q: My spouse has high med bills and has illness which will continue to worsen. He has no long term coverage. How do I avoid going broke paying his medical bills? How do you qualify for Medicaid? What is amount which you can gift to children? The house is going to me via will but I am not on deed or title, only on the mortgage. Would quit claim deed be solution? (Jefferson Hills, PA)

A: There is no quick and easy solution to this and you can create worse problem by starting to give things away. There is no simple answer here. Please do not worsen the problem by transferring assets on your own without the assistance of an elder law attorney. If the ill person is not yet 62 years of age, he or she will not qualify for Medicare but will qualify for insurance regardless of pre existing conditions due to the affordable care act. Check out www.Healthcare.gov. If the ill person is 62 or older he or she can apply for Medicare and should do so with the assistance of an elder law attorney to determine the best way to preserve the person’s assets without doing anything that would jeopardize their Medicaid eligibility, when they do apply for Medicaid in the future. Generally, to qualify for Medicaid a person must have almost no money or assets. Not sure what is going on with your house, specifically why it is not titled to husband and wife. With Medicaid, if the husband and wife are both on the deed, the house may qualify under the homestead exclusion and would be protected. You need to discuss whether transferring this house now is a good idea and all matters with an experienced estate or elder law attorney.

Will step-father have to pay my mother’s nursing home expenses?

Q: Hi. My mother will soon be going to a nursing home. Is my step father responsible for her nursing home expenses after her money? My mom has $75,000 in liquid assets. I own the home she and my step dad live in. My step dad has about $200,000 in liquid assets and owns a farm valued at $950,000. The farm and his assets are in his name only. They have been married 27 years. Is he responsible for her nursing home expense after her money is used up? He lives on his social security and the income from his farm. My mother’s funeral has been prepaid through at trust. Is there anything else we should be doing? (Cecil, PA)

A:  If your step father just paid your mother’s medical expenses out of your mother’s money and waited until she was out of money, he few choices. He would either start to pay from his funds. If he refused, your mother would need Medicaid funding to maintain her care. Your mom has to be eligible for Medicaid, to receive Medicaid benefits. If she is not, her husband could be personally liable for care costs as PA recognized filial responsibility. For determining eligibility for benefits, Medicaid pools the resources of a married couple together so it doesn’t matter at this point who owns what. Through appropriate Medicaid planning, assets can be transferred and repositioned is such ways as to accelerate Medicaid eligibility while protecting the estate, but you need professional help. You really should seek a consultation with an elder law attorney versed in Medicaid regulations.

If nursing home gets guardianship for mom will I have to move out of the house?

Q: Nursing home is applying for guardianship of my elderly mom. If they win will I have to move out of the house that both mom and I own as joint tenants with rights of survivorship. Will they force me to move out to sell the house to pay nursing home bill?

A: You need to contact an elder law attorney asap. If you feel you can handle being Guardian, you should file through an attorney. An attorney can advise you on this and how to protect that home from a potential Medicaid claim which could arise down the road. If you have been living in the home as mom’s caretaker you may be able to keep it for yourself.

Can we sell dad’s house?

Q: My father is getting older and we are going to sell his house to pay for assisted living care. Can items such as an old car. Car is only worth about $1000. My other brother is concerned that would be considered a gift and will cause IRS issues or if later if his money is gone before he dies that if he needs Medicaid assistance. That might cause problems later. We are also trying to get help from VA but they are slow. Brother is also worried about keeping some money from sale of father’s house for burying him if VA doesn’t come thru in time. Said could take years to find his records.

A: In the event your father would need to qualify for Medicaid funding within the next five years, any transfer of his assets without fair consideration (such as gifts to family) could disqualify him from Medicaid eligibility. I would consult with an elder law attorney who does VA benefit law as well. You should not start liquidating his assets without the guidance of a lawyer. If you transfer this car, please document its value with an appraisal, or repair estimates or photos. You may end up paying back the value of the car some day to Medicaid in order for him to qualify. If you sell the house, you must sell it for fair value and keep records to the penny as to how the proceeds were spent on your father’s care. It is his money. You could benefit from a lawyer as you may be able to shelter some of this money from Medicaid.

 

Is it legal to pay a family member to care for a parent from the parents assets?

Q: My mother has Alzheimer’s and needs help caring for herself. She is mobile but needs help with meal prep, bathing and going to the bathroom. She did fall a couple times earlier this year and did get lost in her apartment complex. Doctors said she should not be alone. My brother has been staying with her since April. Can he be paid from her assets (20 thousand?) in order to get her closer to the Medicaid limit of $2000?

A: Any payment of caretaker funds must be done in accordance with Medicaid guidelines for spend down limits. An elder law attorney will know how to accomplish this for you. If you do it on your own, you may risk a penalty and possible Medicaid ineligibility.