Category Archives: Estate Law

Can a POA be a paid caregiver?

Q: If a daughter has a power attorney over her parents and has been told that the parents need a caregiver to live at home by a government official and the parents want the daughter to be the paid caregiver instead of a stranger, can the daughter pay herself from their money?   Can she pay a little less than what the agencies charge for 8-16 hours a day? If that is what the parents requested in writing? She also handles all their finances, groceries transportation everything it takes to live because they can’t do any of I on their own. Mother has Alzheimer’s disease and father had a stroke and is paralyzed on one side. Neither drives a car, cook nor can bath themselves, and they smoke cigarettes. (Blawnox, PA)

A: You should really consult with an elder law attorney who is versed in Medicaid law. He or she can review the paperwork and all the details. Generally, if the POA document allows the agent to be a paid caretaker, then such care is authorized. However, I am unsure of who the “government official” is and what specific directives this government person has given. If they feel you personally are qualified to provide this care, and do not need specialized nursing, I assume it is OK. I would highly recommend that you have your care authorized by a written caretaker contract which specifies the scope of your duties, hours and wages. This should be drafted with the help of an elder law attorney in the event your mother eventually becomes eligible for Medicaid so you can be paid and reimbursed by Medicaid.

If I die without a will…

Q: What happens if I die without a will? I am married and all our assets are in joint accounts?

A: If all of your assets are jointly titled with your wife, upon your death they pass to your wife by operation of law. With no will, if there is anything in your name only, it will go to heirs under the PA intestate statute. This would mean that the first 30 k would pass to your wife and the balance split between your wife and children. If you would rather your wife inherit everything from you that is held in your name at the time of your death, you will need to have a will in place.

 

Can I just take my dad out of the home?

Q: My Dad was put in a home by someone who is no relation and she signed papers so I have no rights. Can’t I just take him home with me? I am his only daughter (both at a biological & legal stand point) and he has supposedly been diagnosed with dementia. I have no criminal background, etc. There is no reason I shouldn’t be able to take my Dad home to be in my care.THE PAPERS SHE SIGNED WERE JUST FOR ADMITTING HIM UNDER THE FACULTY’S CARE. I BELIEVE. NO GUARDIANSHIP EXISTS.

A: Much more information is needed to answer this. For example, on what authority did the “someone” act upon in putting him in a “home”? Did he or she have a Power of Attorney from your dad? The only person who can sign him your dad out is your dad or the person who has legal authority over him. If suddenly taking him out of the home would be detrimental to his health, you may be opposed, unless you have the ability to continue the type of care that he needs. The facility may file for a guardianship. You would have to demonstrate that you are responsible and have an appropriate home. A home assessment would have to be done. If you walk into the nursing home demanding to leave with dad, they will likely call the Department of Aging. You may have to file for a guardianship. You should find a local elder law lawyer and have a talk.

Will Medicare, if requested, give us a detailed list of money spent on mother-in-law?

Q: We are trying to get a range of money Medicare is going to try and recoup after her death. This will also help us decide on decisions we need to make regarding her assets that she has. Thank you

A: Generally, Medicare does not initiate recovery of monies paid unless the payee collected the payments under some type of fraud, or if the payee was awarded money from an injury lawsuit while receiving Medicare payments and thus, double dipped. I think perhaps you mean Medicaid. Medicaid does have a recovery program administered through the PA Department of Public Welfare. When a person enters a nursing home with insufficient funds to pay for care or their funds become depleted while in care, they may have to apply for Medicaid funding. Medicaid can have a lien on all personal and real property of the applicant and expect the financial contribution of the market value of those assets in order for the person to be eligible for Medicaid. Medicaid liens most commonly can be enforced against a home when there is no spouse or disabled or minor child living in the home. If a person feels a loved one may need Medicaid funding in the future it is very wise to consult with an attorney regarding careful financial planning so at least a portion of the person’s assets can be sheltered from Medicaid. You have the legal right to get information from Medicare or Medicaid as long as you are authorized to do so. If a Power of Attorney or a standard Release is needed for you to obtain this information, Medicare or Medicaid will let you know which you need.

Should I file a guardianship for my mom?

 

Q: Do I need to file a guardianship if the Power of Attorney is not doing his job? Mother is in a nursing home and brother is her POA. Mother is unable to communicate except for head gestures. Doctors say she is able to leave facility. Brother refuses to take her out. Do we have to file a petition for Guardianship in order for me to be her guardian? Brother keeps throwing in our face that he is the power of attorney.

A: Filing for the guardianship is a more expensive route to go. A guardianship proceeding involves a doctor’s deposition fee, court reporter fees, filing fees, lawyer’s fees. It will involve a hearing before a judge to determine who should be the guardian. Your brother may contest. Your mother must be served with the petition and may be called as a witness. Courts normally favor the person who has the POA but this doesn’t mean you would not be awarded guardianship of her. You have set forth some valid considerations to replace him. You may want to consult with an elder law attorney before you start any disagreement with your brother. The easier thing to do would be to have mom sign a new Power of Attorney over to you, but I am assuming this is not possible. The new POA would have language which revokes the prior.

 

Should my parents sell their house to me and my siblings?

Q: To prevent disputes after my parents pass away, my parents want to sell the house to my sister. How is the easiest way to do this? I have a sister that is crazy and we do not want her to cause chaos over the house when my parents are gone. I am hoping that a straight out sell will supersede any property rights that said sister may have. My younger sister has agreed to purchase the home and take control of my parents’ living expenses. (Pittsburgh, PA)

A: f it is the desire of your parents to sell the house to your sister, and they are not doing this under any stress or pressure from other family members, then here is what I can say. First, if it is even remotely possible that either parent may need to apply for Medicaid to fund their nursing care within the next five years, then they cannot sell the house under fair market value. If sold under fair market value, your parent could be disqualified from receiving Medicaid benefits. Your parents need to consider that if this house is their most significant asset, or one of the more significant assets that they possess, the proceeds of it can never be used to fund their nursing home care. I strongly suggest that your parents consult with a local lawyer versed in Medicaid regulations. The money you spend on the consultation may be well worth the advice you receive on preserving at least some of your parent’s money. Additionally, be aware that at least in Allegheny County, they may lose any applicable senior citizen’s taxes. Your parents should also be aware that if your sister is ever sued and would have a judgment placed against her, it would act as a lien on the home. Transferring the family home to a child or children for financial or estate planning reasons, should be done with the advice of counsel and must take a multitude of facts into consideration, including but not limited to the parents entire estate value and income, their health and their intentions on equitable

Aunt and Uncle taking my father’s money

Q: I took great care of my parents my entire life. My Mother recently passed. I am being kept away from my 87 year old father. He suffers from dementia. My Aunt & Uncle are controlling Dad for their financial gain. They are taking his money and acquiring assets. They took him to make a new will with their attorney. (Baldwin Twp., PA)

A: If you feel they are exerting undue influence on him, or he is incompetent to manage his own affairs, you could see a local attorney about petitioning the court to become his guardian. As a child, you would qualify, with other siblings if there any, to be a guardian. On the financial management side, your dad can do, or allow others to do, pretty much whatever he wants, irrespective of whether and to whom he has provided powers of attorney. This is true even if the results are adverse to his interests or to the interests of his children. You can attempt to involve the police or elder protective services, but it is generally hard for them to take action where the senior cannot lucidly express an objection. The most common course of action is to seek a guardianship with the probate court. The guardianship supercedes your father’s right to manage his own affairs, including others doing so with his permission or using a POA, and the guardian has the right to sue or pursue charges if money has been stolen. Ideally, you want to request that you be the conservator, but if there is significant friction the court may elect to appoint an independent conservator, usually a probate attorney. In general, courts do not take kindly to elder fraud, but non-appointment is a risk to consider.

Mom is 94. If she sells her house for $50,000, Can she gift some to her children?

 

Q: If she goes on Medicaid what will estate owe? Mom lives on her $1100 monthly Social security check. The house is paid off. She is on an Elder Care program repaying her up to $200 per month for home expenses. This is a Medicaid program. After selling the house she could rent an apartment for $350 a month. She is concerned that the money gifted to the children four of them will be required to be paid back to Medicaid if she were to go into a long-term care center.

A:  I urge you to consult with a local attorney who is versed in Medicaid law. Generally, gifts, which are transfers for no consideration (something received in return less than fair market value), within 5 years of an application for Medicaid benefits, will disqualify the applicant from benefits. Therefore, your mother’s concerns are valid. If she gifts sums of money to children either while she is collecting Medicaid benefits or within 5 years of applying, she could be disqualified from receiving Medicaid. Your best bet is to have her hold off on making gifts and consult with a local elder law attorney. He or she can advise you as to how mom can legally “spend down” a portion of her wealth without running into Medicaid complications. It will be well worth the consultation fee.

Can Medicaid view my mother’s home as an asset for step-father’s eligibility?

Q: Can the State view my mother’s home as an asset in determining my step dad’s eligibility for Medicaid? My mom has owned her home in her own name for 40 years. She married my step father 35 years ago but left the house in her name. He is now going to require hospitalization in a nursing facility. Is her house at risk?

A:   All assets of husband and wife, regardless of how titled, are considered available assets for Medicaid eligibility. It often happens in late-in-life or second marriages that couples keep real estate or financial accounts separate in their own name. It really doesn’t matter for Medicaid. Medicaid will count assets of husband and wife, regardless of how titled. This is true even if there is a pre-nuptial agreement saying to the effect that the assets of one are separate and not available to the other spouse. These sorts of agreements are no concern to Medicaid as they count assets of both spouses regardless of the prenuptial or ante nuptial agreement. This is true even if the wife brings a million dollars into the marriage the husband brings very little and they keep their accounts separate. It would not matter to Medicaid as they would have the wife “spend down” most of her savings on his nursing home bills. This can be prevented with a skilled elder care attorney as he or she would know how to preserve the couple’s assets and savings for the at home spouse. This is true even if the rich spouse went into the nursing home. A portion of the assets may be able to be preserved for whomever they wished, including the spouse or other family member.

If my husband goes into a nursing home, will I lose my house and savings?

Q: I have power of attorney. My husband is 82 and in falling health. I cannot take care of him. My health is not good enough for me to manage his daily care.

A:  You and he will pay for his nursing care with private funds. When you run out of funds to pay his monthly costs, you will need to look for funding. You may want to look toward the VA if he is a military veteran, however, most people in this situation need to apply for Medicaid. An elder lawyer versed in Medicaid law can direct you through this process. Generally, Medicaid will allow the community spouse, you in this case, to keep the home and some amount of cash funds, depending on Medicaid regulations applicable to your specific case. Once you die, or leave the home, Medicaid may have a recovery interest in the home or the proceeds of the sale. Again, a legal opinion would be helpful as there may be ways to spend down or shelter a portion of this money. It would be worth the price of a legal consultation where your entire situation can be reviewed including income, assets your health, your husband’s health, other resources for medical funding, etc.