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.
Tag Archives: ELDER LAW
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.
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.