Tag Archives: ELDER LAW

Can my dad prosecute me for mom making gifts to me?

Q: My dad’s accusing me of elder abuse for taking my mom to the bank getting out her money to go to the casino or do whatever she wants. I take her to bank to get the money she wants to go to lunch or casino and she’s helped me with my school loan as she did with my nephew by putting a $2,500.00 fence around his pool. She’s given me $2,400.00 towards my school payments. My dad says he’s putting me in prison if I don’t pay him $5,000.00 can he do this? She told him he’s out of line.

A: Your father can threaten to file criminal charges, but I would need more information to determine if the police or the DA actually file them. On one hand, if your mother is competent to make these gifts, and she is under no undue influence or coercion to do so by you or anyone else, then her decision to make gifts is hers. On the other hand, if she is not competent or acting with clear capacity, and she is seriously depleting funds that your father and mother may need for their golden years, he has a legitimate concern. There are criminal statutes that protect the elderly or mentally infirm from being taken advantage of. Whether they apply to your situation I cannot say for sure without more information. Just based on what I hear, I am doubtful criminal charges may arise. However, if your father seeks legal advice, and an attorney believes your mother is not competent or being coerced to make these gifts, you could face criminal charges or a civil suit.

My grandmother lives with me and I cannot take care of her anymore

Q: My grandmother lives with me I work a full-time job and no longer help to take care of her. She cannot make rational decisions and physically cannot take care of herself. She does own her own home. I have no POA. She will not let me help her with any of her finances. I take her to the bank and to pay her bills. She needs 24-hour professional care. I need help, how do I send her to a home if I don’t have any say so and cannot access her money. (West Homestead, PA)

A: I am sorry for your situation and understand the stress it can cause. You need professional help. I would contact her doctor to have her examined and assessed. Not only for her well being but for Also, see a lawyer about a guardianship-either plenary or of the person. If a guardianship is granted, the money to pay expenses comes from her estate and you won’t have to pay.

Aunt in nursing home, but owns a home

Q: My Aunt is in a nursing home in Westmoreland County. She still owns her home in Allegheny County but will not be able to return there to live. Can we keep aside some of her money to pay for yearly taxes and homeowners insurance? If so, how many years can we keep back? (Churchill, PA)

A: If she has enough money to pay for the home and at the same time afford nursing care, she can keep the home. I think your concern is whether this home can be maintained if your aunt should run out of money to pay for nursing care and need to apply for Medicaid to continue in her nursing home setting. Generally, there are planning tactics to avoid Medicaid recovery against the home but doing this at the last moment and not years before is basically too late. If she will need to apply for Medicaid because she has insufficient funds to afford nursing care, the home will need to be sold. However, you should only do so under advice of an elder law attorney versed in Medicaid to determine how the proceeds should be spent down to save as much money as possible for your aunt. Without knowing more, I can offer this. If you want to preserve the home, and she can afford it, do so. Whatever you do, do not have her transfer it to family or friend as a gift as this will render her ineligible for Medicaid. If she must sell the home, sell if for fair market value and keep records of everything.

Can I hide money from Medicaid?

Q: Can I legally hide money to be approved for Medicaid by paying off my adult children’s credit card bill directly to the credit card company? Even if I never transferred money to my adult children’s bank account.

A: Your bank statements will be scrutinized in the Medicaid eligibility process and such a payment would be considered to be a gift or a transfer of money to benefit another person with no consideration received in exchange. It could and likely will render you ineligible for Medicaid benefits to the extent of the dollar value of the transfer. I would consult with an elder law attorney to determine what monies you can shield from Medicaid.

Will paying family members for nursing care trigger a Medicaid transfer penalty?

Q: Grandmother was paying $14k/month to private homecare agency so I (grandson) moved in to take over her care before she ran out of savings. She has paid me $2,400/month for the same care, and I have reported the money on my taxes as income. She now needs to go to a nursing home, but will only be able to pay out of pocket for a few months. Over the 18 months I’ve cared for her, she has paid me a total of about $40k. I know that if she had just been giving me her money, we would not be eligible for Medicaid due to the transfer penalty. Is the transfer penalty still a risk given that she was paying me for a service that would have otherwise cost her much more? (Pittsburgh, PA)

A: Very possibly. Be careful. Caretaker payments to family members without proper documentation and receipts can raise red flags with Medicaid and yes can in fact be viewed as a transfer without consideration within five years of Medicaid eligibility. The fact that you reported the income on your tax return is important. You would be safer if you have a caretaker contract signed by grandmother in place that is the type of document approved by Medicaid. You should consult with an elder law or estate attorney before you do anything .

Can I turn down the adult protection service ?

Q: A lady from the adult protection service was contacted by my sister and the lady has came out to the home 3 times. She keeps leaving a card on my porch. I am 38 years old. Is there a way for me to get the adult protection service to go away? (Swisshelm Park, PA)

A: I am not sure if you are the one someone is concerned about or if it is your care of another person that has raised concern. In either case, generally, once a complaint is filed, these investigators will not go away. You can keep avoiding them, but they may take more aggressive action like come out with the police or obtain a warrant. I would review the situation with a lawyer and see if it is necessary or advisable for you to meet them with counsel.

Can I keep nursing home from taking all of my mother’s property?

Q: How does my mother make arrangements to keep a nursing home from taking her property in future? She is in a nursing home at present but will be paying on her own after 1/25/14. I would like to take her home with me to see if she improves but her mental capacities are rapidly fading. (Munhall, PA)

A: You have several issues here. One is your ability to care for her at home. The other is potential funding issues if she should deplete her savings and neither she nor you can afford the level of care she needs. This is a Medicaid issue. Consult with an elder law attorney or estate attorney before you do anything. I assume you are concerned about Medicaid. There is a 5 year look back from Medicaid on all transfers without consideration. Some transfers are allowable, others are not and could result in her being ineligible for Medicaid. You do not want to start gifting property to family or changing title to property unless advised by a lawyer.

 

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.