Tag Archives: ELDER LAW

What is the widower entitled to if the spouse goes on Medicaid (PA)?

Q: My grandfather is unresponsive in a long term rehab center. He is 65 (December Birthday), has Medicare and Bankers Life/Colonial Penn Plan N. He is about to run out of covered days. The thought was to put him on Medicaid, but we don’t know what they can take (home, savings, property, cars, etc.), what the widower is entitled to keep, and so on. We also don’t know how it will work with Social Security – will she be able to keep his monthly check? Together last year they made a total of a little less than $40,000. Everything they own, their house (no mortgage), 3 cars, and all bank accounts are in both their names. The other problem is that my grandmother doesn’t have power of attorney, and since my grandfather is unresponsive, that isn’t possible (to my knowledge). What about guardianship? (Forest Hills, PA)

A: You really need to find an elder lawyer versed in Medicaid regulations to guide you through your situation. Generally, the state takes a snap shot of the assets a married couple owns at the time of eligibility for Medicaid. It doesn’t matter if the accounts are titled jointly or in either spouse’s name. There are certain assets that will be excluded such as the primary residence, one car, certain life insurance and qualified retirement accounts of the community spouse (the spouse not in the hospital). This snapshot value is added together — the community spouse gets to keep at a certain amount of assets pursuant to Medicaid’s convoluted formula. Sometimes, you can increase the maximum amount that can be retained if. Again, you really need a thorough assessment of the situation. If grandfather is not competent to sign a Power of Attorney, you may need to have an attorney file for a guardianship over him.

How to revoke a Power of Attorney

Q: How can I revoke my power of attorney? What if my agent engages in unauthorized acts after the power of attorney has been revoked or terminated?

A: Normally, POAs are not filed with the court. Also, normally, a POA has language that states in can be revoked in writing by the Principal. Therefore, you should be able to revoke this, by drafting a Revocation of POA. Once you do this you should have the Revocation delivered to every institution which may be relying on it, such as banks and hospitals. If your agent has acted contrary to your interest after having knowledge of the Revocation, he or she, could be subject to criminal charges or a civil suit, especially if he or she has stolen or converted money or assets. You may need a lawyer to assist you.

Can Medicaid make a claim against an estate if the estate has been closed?

Q: The estate of my mother, who passed away, was opened in 2012 and closed in 2014. The estate was closed Sept 2014 and Medicaid made an estate recovery claim in Feb 2015.

A: Much more information is needed regarding the type of Medicaid received by your mother and much more information on her estate. For example, was her estate closed formally, by an Account filed with the court? If it was, was the PA Department of Public Welfare put on notice of the Audit date and presentation of the Account to a judge for signing pursuant to the PA Probate Estates and Fiduciary Code? Generally, Medicaid can recover against the property of a deceased person through the PA Department of Public Welfare Estate Recovery Program. However, regulations and rules dictate if this can be done and to what extent. In addition, if the estate followed certain procedures, estate assets may be protected. You need to review this entire situation with an estate elder law attorney who is versed in Medicaid law.

Transfers of Assets Regarding Nursing Homes

Q: I am purchasing land from my mom so that she can have some cash to spend for living expenses. My mom is 78 and in fairly good health but if she needs to go into a nursing home within the five year “look back?” After the transaction can the nursing home take back that property if it was not a gift?

A: GENERALLY, if the transfer is for fair consideration, it should not exclude her from Medicaid eligibility. This means fair market value as documented or appraised. If you do this, you need to document everything henceforth, so if called upon down the road in the Medicaid application process, you have your proof.

Can I be paid for my POA services?

Q: I am a power of attorney for my wife’s Aunt. I do everything from pay bills for nursing home, do income tax, get health ins.etc. I take care of her house, clean, sprinklers on and off, buy things she needs, check medical bills, and a whole lot more. My question is, how much can I charge her monthly. I drive 45 minutes, 2 days a week to make sure house is ok. Is $300 a month ok!, or, is it too much or not enough. Thank you for your input! (West Newton, PA)

A: You can charge a fee for your services as an Agent on the Power of Attorney (POA) if authorized by the language contained in the POA. If the POA does not mention a specific dollar amount, it probably says a “reasonable fee”. If so, the fee must be reasonable compared to the normal fee charged by elderly caretakers. You may want to investigate. It may be in the $20 to $30 per hour range. Beware however, if she ever needs to apply for Medicaid in the near future, these payments could be considered a transfer without fair consideration and could disqualify her from receiving Medicaid benefits. If you fell she may need Medicaid in the future, you need to meet with an Elder Law attorney who is versed in Medicaid law, to review the entire situation.

If my mother is in a memory care unit is she competent to give a power of attorney?

Q: Mother’s memory has deteriorated to the point where she must reside in an Alzheimer’s care unit. Does she still have the legal capacity to grant a power of attorney or to consent to a formal guardianship? Who determines competency if there is a dispute among siblings?

A: A person must be mentally competent to sign a Power of Attorney or to consent to any document or in any legal proceeding. If she is in an Alzheimer’s unit, one would think her competency is compromised. I think you need to consult with her doctor as to the level of her competency. If she has basic competency, even with an Alzheimer’s diagnosis, she may be able to sing a Power of Attorney.

Yesterday I agreed to a court- appointed guardian over my mother

Q: My appointed attorney made it sound like I was agreeing to have someone help me care for my mom, and I had told her from the beginning I did not want the state to appoint a guardian. I had no idea till it was too late. I would have never given my mother’s power of attorney away. How do I appeal this?

A: I would need more information to answer this. If you just “agreed” to it, and you haven’t gone to court and obtained a guardianship order, you should be able to tell your attorney you have changed your mind. If your attorney filed a petition, a hearing was held, and a judge issued an order which appoints a guardian over your mother, and you participated in this proceeding and now, you want to rescind the order, that is an entirely more complicated matter. You will probably need a legal opinion from another attorney on how to challenge the order. Don’t wait, tell the attorney now of your intentions.

Are insurance proceeds reported on an estate Inventory?

Q:  Are life insurance proceeds paid to a beneficiary need to be listed on the Inventory for probate?

A: Generally, in Pennsylvania, insurance proceeds, if payable to a living beneficiary, are not part of the estate and therefore do not appear on the estate Inventory nor are they subject to inheritance tax.

I live in Florida but am an Executor in PA

 

Q: I live in Florida and am executor for a will in probate in PA, Allegheny County. Do I need a lawyer licensed in both states to help me file tax papers. (Bradenton, FLA)

A: The state where the decedent had residency, is the state where the estate must be opened. If all of the property is in PA, a NJ lawyer may set up an estate in PA. For convenience, depending on the local PA law, you may be able to be sworn in as executor in the FLA probate court, to save some travel time. The FLA probate court then certifies the paperwork then sends your papers to the PA probate court. The PA probate court then admits them and certifies you as executor. If there is property in FLA, you may need to have a lawyer file for an ancillary estate in FLA, to handle the FLA property. I would consult with the PA lawyer first.

 

My mother committed Medicaid fraud

Q: Hiding assets to acquire Medicaid for a nursing home. My mother put my father in a nursing home after I took care of him for 3 years and blocked me from being his POA. Also, they took all his assets and put them in my sister’s name to hide everything from Medicaid to pay for the nursing home. She is also taking his social security benefits and keeping that money. What can I do to help my father? He do want me to be guardian. Can anyone help me and are they committing fraud? Thank you

A: Medicaid regulations involve a five year look back for transfers of assets without consideration. When she filled out the Medicaid eligibility application, if your mother failed to report transfers of your father’s assets that took place within the five year period before Medicaid coverage was to start, this could be Medicaid fraud. It’s unlikely that your mother is taking his SS benefits, since they likely will be paid over to the Nursing Home. This is a big mess. You should look for an attorney versed in Medicaid law to straighten this situation out. If it is as bad as you say, perhaps you will be favored by the court over your mother if you file a guardianship petition. Most attorneys will work with you on the fee as they will be paid out of your father’s assets under court approval.