Tag Archives: ELDER LAW

Brother with DPOA will not tell me where my Mother is.

Q: Brother and Mother live in Allegheny County, and I am in Wheeling. Mother signed a General Durable Power of Attorney over to my brother. Mother was in an Independent Living Facility, but after a fall, was admitted to in-patient rehab facility. She is no longer there and brother will not tell me where she is. He said she does not want to see me, which is untrue. I discovered his daughter has been added to the title on my mother’s house, for the consideration sum of $10. I believe she is being exploited and coerced. We requested a welfare check, but with being out of state, Pittsburgh PD required contact from our local police, and a missing persons report was filed. Unfortunately, my brother was there when the police arrived and my Mother could not speak freely. How can I find out where she is?

A: If you believe mother is being financially exploited by your brother and niece, as a first step, you can call the county Department of Aging and see if they will do a wellness visit to assess the situation.  If you truly believe you are better suited as a caretaker of your mother, you can hire an Allegheny County attorney to file for a Guardianship, which will result in the court making a determination as to who, between you and your brother, would be your mother’s guardian. However, if the Department of Aging cannot help the situation, the Guardianship may be your only option as you will probably keep running into roadblocks with your brother.  I would also consult with an Allegheny County attorney.

Senior HUD living person comes into large sum of money

Q: If a senior lives in a HUD senior apartment and comes into a large sum of money, what happens to their status of living there? Also, what about Medicare and Medicaid benefits? How will they react?

A:  Regarding Medicare, it is not based on assets so it is not affected. Medicaid is based on “countable assets” so it would potentially be affected by someone “coming into” money. You have to look at the Medicaid application that was initially completed. Usually they are somewhat similar to any needs-based model where they look at income and assets. They are subject to periodic review. It is not clear if the tenant would have to leave or merely pay more money to spend down, so to speak the new found money. You have to look at the documents and speak to the facility. My advice would be to seek an opinion from an elder law attorney as early as possible to see if any of this money can be sheltered.

Do I have to pay mom’s money back to a nursing home?

Q:  My mom paid off my car and then went into the nursing home. The deal was, a few years later would I have to pay that amount to the nursing home. My mom is getting very forgetful if she gave me money to pay off some bills I have. If I have to have in home help or have her go to a nursing home. Would that penalize her, or would I have to come up with that money? I am on her checking account and I have durable power of attorney. Thank you.

A: I am a little confused and don’t have all the facts that I need. You really need to ask an elder law attorney who can look at the entire situation. Generally, transfers of a person’s money to others, without consideration (no payment in exchange) within 5 years of Medicaid eligibility, can cause that person to be ineligible for Medicaid in the amount of the transfers. It is not the nursing home that is the problem, it is if and when your mother needs to apply for Medicaid. It sounds like you and your mother could really benefit from legal advice, but the attorney has to know the entire situation.

Should I report injury settlement to Medicaid?

Q: Should I refrain from filling out my Medicaid recertification form? First let me say that Medicaid does not have any liens on my settlement in any way. I am due to have the recertification form filled out and returned in less than two weeks. However I recently received a personal injury settlement for less than $20,000 but more than $10,000 which I am not sure by may put me over the PA asset or resource threshold. One legal advisor informed me that I could let it lapse and try to find a Medicare Advantage program to replace Medicaid. I never have liked to inform anyone of what’s in my bank account; but then, who does? So should I not fill out the form which means automatic cancellation or fill it out and let them deny my Medicaid because of my suddenly inflated financial resources from the P.I. settlement?

A: There is not enough information to give you a reliable and through answer. Why would anybody want to risk losing Medicaid funding is my first question. If you handle this improperly you could risk violating the law and lose Medicaid benefits.  I would consult with a lawyer versed in Medicaid rules and regulations before doing anything.

For purposes of Medicaid, what assets are exempt?

Q: I am widowed and getting up there in age. I want to make sure I can protect myself. I own a home, a car, some certificate of deposits and a bank account.

A: This is a very complicated issue and you should sit down with an elder law attorney to review your entire situation-assets, income, insurance, health, everything. Very generally what is exempt are one automobile of any value, prepaid burial expenses, special needs trusts and $2,000 in liquid assets. Some assets are conditionally exempt, for example, the principal residence, while residing in it and some income producing property.

 

Financial Power of Attorney issue. Did the law change?

Q: Long story short, my father has been in and out of a hospital for the last 2 years with complications arising from a benign tumor. Because of his medical setbacks, and in trying to conserve his money, I was able to find POA papers for PA online in order to handle his financial matters. We signed them in front of a notary, and I thought that was the end of it. However, when providing a copy of the POA to the bank to gain access to his accounts, I was informed that the form that we filled out was an old form, and since PA changed their POA laws at the beginning of 2015, was no longer valid. I would need to have a new 1st and last page signed by him and I that include the new 2015 legalese, and resubmit. The issue now, however, is that he has taken a somewhat turn for the worse, and is suffering from delirium. Because of this, I can’t have him sign anything knowing he doesn’t understand or comprehend what he is signing. Do I have any recourse to getting this rectified in his current condition without having to go through the courts to request guardianship/conservatorship privileges?

A: There is an inherit danger with pulling legal documents off the internet. PA House Bill 1429 was signed by the governor on July 2014 and made sweeping pages to Title 20 Sections 5601 through 5620, the law which governs Powers of Attorney in PA. The changes were effective on January 1, 2015. The changes not only affected the Notice requirements, but the Acknowledgement language and much more. I am sorry to say that if your father is not competent to sign a new POA, and the bank will not accept your current POA, you are out of luck. Your only option will be to seek a guardianship over your father. You should see an attorney immediately to review your options, which will likely be to file for guardianship. Unless of course, if your father rebounds, his signature can be taken, or, if he would unfortunately die, then the need for either would not be necessary.

 

I need Elder Law advice on moving mom’s assets.

Q: I am moving all my mom’s assets into Irrevocable Trust for Medicaid nursing home care purposes. I’m aware of 5 yr look back period. The PA Department of Public Welfare Medicaid worker informed me my mom’s $1300/month is too much to qualify for in home help but, nursing home help would be possible. Mom is healthy now but, SHE wants to plan for the future and so do us kids. So protect as much of her assets as much as possible should we place all of the following (IRA, paid for House, Life Insurance Policy, a small Savings Account) into an Irrevocable Trust? We could set the trust up to distribute $700/month automatically to my mom every month making her monthly income $2000 and then, when/if need arises, apply for Medicaid to help cover the rest of the nursing home expenses. Is this a workable plan? Thanks!

A: An irrevocable trust is one tool, among many that people use. If you are planning to move retirement plans into it, they need to be cashed out which often triggers income tax consequences which could make this move not advisable. To advise you thoroughly on this would require an in depth analysis of your mother’s entire situation including her complete assets, health, age, social security income, etc. I suggest that you meet with and Elder Law attorney to work on a blueprint as opposed to just doing this yourself.

I need Elder Law advice on moving mom’s assets.

Q: I am moving all my mom’s assets into Irrevocable Trust for Medicaid nursing home care purposes. I’m aware of 5 yr look back period. NC Medicaid worker informed me my mom’s $1300/month is too much to qualify for in home help but, nursing home help would be possible. Mom is healthy now but, SHE wants to plan for the future and so do us kids. So protect as much of her assets as much as possible should we place all of the following (IRA, paid for House, Life Insurance Policy, a small Savings Account) into a Irrevocable Trust? We could set the trust up to distribute $700/month automatically to my mom every month making her monthly income $2000 and then, when/if need arises, apply for Medicaid to help cover the rest of the nursing home expenses.  Is this a workable plan? Thanks!

A: An irrevocable trust is one tool, among many that people use. If you are planning to move retirement plans into it, they need to be cashed out which often triggers income tax consequences which could make this move not advisable. To advise you thoroughly on this would require an in depth analysis of your mother’s entire situation including her complete assets, health, age, social security income, etc. I suggest that you meet with and Elder Law attorney to work on a blueprint as opposed to just doing this yourself.

Should I liquidate her assets?

Q: I have a 96 year old Grandmother. I am last living relative. Recently removed from her home where she was living alone in bad conditions, 600 miles away from me. I now have established temp guardian and custodianship, permanent in 3 weeks, and getting her in nursing home. Her house is in a bad neighborhood and now that people know it is vacant, it will be robbed and badly vandalized by the time the court date arrives. House is in bad condition inside and city is about to condemn but I had 2 people come out and prepare cash offers. The house is full of my grandfather’s expensive tools, etc. I hate to see that all go to thieves or be taken by the city. Should I try to sell everything and give her the money? I don’t live here and paying $100 hotel every night, don’t have much time

A:  I have had many clients facing this situation. If you feel you will need to apply for Medicaid funding for her in the near future you want to be careful with how you liquidated her assets. While it is true that the transfer of assets without fair consideration in the five years prior to Medicaid eligibility can lead to a penalty, the operative wording is “fair” consideration (fair price). My suggestion is to follow the advice of an attorney versed on PA’s administration of the Medicaid program. Generally, you can liquidate personal and real property as long as you do it for a fair price and keep accurate records-and keep her money for her, and not gift it to others. If you sell the house, get a few offers in writing, take photos and place the proceeds in grandmother’s account, for her use. Document the deposit. If you can get someone to appraise it before selling, do it. If you apply for Medicaid some day you may need to demonstrate to them that the sales price was fair. You can deduct the expenses from her account, but keep records and receipts. No one expects you to pay for all of this out of your own pocket. Reimburse yourself from grandmother’s account, but again, document everything including your hotel room, gasoline, movers, locksmiths, etc. As far as right now, you should remove the valuables from the house and secure the house by whatever means necessary-light timer, an alarm system, or even boarding it if you have to. In the meantime, gather the bids, and sell it. As long as you can feel confident you sold it for as much as you could get, given the bad area and condition of the house, Medicaid will probably understand, as long as you can document it. Again, find a local lawyer to advise on this before you start for some guidance. An attorney can advise you on any available financial tools to shelter some of her assets from Medicaid consideration.

 

How do I help paralyzed senior in another state?

Q: His children are mistreating him. They have power of attorney. He lives with his daughter and her husband. They will not allow him to have company. After his nurse leaves, no one comes to check on him. He has a decent income. He just wants to live in assisted living, be around other people. They don’t take him out and he doesn’t eat with them. His grandchildren lives there and he hardly ever see them. He has no quality of life. His nurse is only company he has. He is in wheelchair, but it is just cruel the way they treat him.

A: This is a difficult situation. You could try to talk to the family if you haven’t done so. You could contact the local Department of Aging to see if they will do a wellness visit. Perhaps have him express his feelings of wanting to leave to the department of aging people in writing if he is not comfortable doing it in front of his present caretakers. Maybe, but doubtful, the local police department has an officer who deals strictly with domestic situations or with crime against the elderly. If such officer exists, you could see if he will visit your friend and talk with the family then talk to the friend in private. He could also sign a POA in favor of you if he agrees to do so and if you can somehow get it done with a lawyer going into the home. It seems that if this friend of yours really wants to leave, if he expresses his feelings, it can be done. The other option is to file for a guardianship over him which you really need to have legal advice before doing so. If you are not family, the court will favor family unless the family members are suitable.