North Carolina Elder Legal Questions

An elder law attorney can do more than help you with medical and financial powers of attorney, hopefully broad enough to allow you to do all you need to do for your husband, including Medicaid planning.  An elder law attorney can help you with VA and Medicaid planning, guide and perhaps help with the application.  An elder law attorney may be able to direct you to state- and locality-specific resources which will help you care for your husband whether at home or in an apartment in an assisted living facility.  An elder law attorney can advise you on how to care for your husband while preserving assets to provide for yourself when he is gone.  An elder law attorney can help you parse the contract with an assisted living or skilled nursing facility and address some of the problems you may find.  To locate an elder law attorney near you, use the Find a Lawyer function on the website of the National Academy of Elder Law Attorneys (www.naela.org).... Read More

Undue influence can be brought to bear over a competent person, as can elder exploitation.  Take your evidence to a local elder law attorney.  You can locate one near you using the Find a Lawyer function on the website of the National Academy of Elder Law Attorneys (www.naela.org).... Read More

This is an old trick.  It is illegal.  Cross out "legal representative" and "personal representative" wherever they appear and write in "as agent under DPOA" -- if indeed you are.  Check with your sister, ask the facility for a copy of the alleged power of attorney and check the deed records.  A power of attorney affecting real property must be recorded in the deed records to be valid in that respect.  Note that you can always choose anotehr assisted living facility and that the contracts are negotiable.... Read More

Consult an elder lawyer to learn whether transferring during her life without affecting her Medicaid eligibility.  She may need to file a transfer on death deed or transfer the property by her Will.  You can find an elder lawyer near you on the website of the National Academy of Elder Law Attorneys (www.naela.org). Your grandmother does not need to find her old will to make a new one.  A new will states that it revokes any previous wills.  ... Read More

From your description, it sounds as though your inheritance is subject to the Medicaid Estate Recovery Program.  This means that you cannot inherit until Medicaid is reimbursed for the cost of your aunt's care, at abouct $6,000-6,500/month.  While Medicaid may waive recovery for a child who resided in the home, providing care which delayed the need for a nursing home, for at least two years, there is no similar provision for a niece or nephew.  A niece or nephew would have to argue that Medicaid recovering from the estate, as Congress requires, would work a "undue hardship," forcing them onto public assistance.  For help in making this argument, see a local elder law attorney.  You can find one on the website of the National Academy of Elder Law Attorneys (www.naela.org).... Read More

If I understand you correctly, you and your sister would rather expose yourselves and have your mother die in your home or in your sister's home in another state that have her cared for and die in a nursing home where she might infect others.  This may not be doable.  She may not be able to travel.  If she is able to travel, it probably cannot be by public transportation, such as a plane.  If you or your sister drive to get her, put her in a car and drive her to one of your homes, you are greatly increasing the chance that you will become infected and unable to care for her or yourselves.  You write that you and your siblings are all over 65.  A Kaiser Family Foundation study of people over 65 admitted to hospitals with covid-19 found that ALL of those who were placed on ventilators died.  You and your sister could also infect others.  If your mother is 95 and ill enough that she needs 24/7 care, she may not survive the trip.  This is particularly true if she is as near death as the doctor described:  someone who is better off receiving comfort care.  If she is, please note that as we approach death, our bodies know that we do not need further nutrition.  Withholding it is not starving someone to death:  it is letting life take its course.  While your wish to care for your mother is laudable, sadly, you may not be able to carry it out.  After discussing the situation further with your siblings, you might want to see whether you can communicate with your mother by tablet or by cell phone and then talk with a discharge planner at the hospital.  A hospital is not allowed to discharge someone to an unsafe environment.  Given what you wrote of your mother's condition, discharge to a skilled nursing facility may be much safer than discharge to your car and your home.  I know this must be difficult, excrutiatingly painful.  Too many of us are in this position, having to accept what we would otherwise find unacceptable. ... Read More

Those funds are your mother's and should be used to pay for her care.  Hiding them from Medicaid, for whatever purpose, is Medicaid fraud.  She will not qualify for months, probably years.  You will be criminally prosecuted. Your fellow taxpayers may be willing to loan money to pay for your mother's care.  They are not willing to loan her money so that you can steal from her.... Read More

An agent under a Durable Power of Attorney is required to put the interests of the person who granted the attorney (your mother-in-law) first.  You might consider raising the possibility of fraud and elder exploitation with an elder law attorney, the DA and the AG.  You can use the Find a Lawyer function on the website of the National Academy of Elder Law Attorneys (www.naela.org)... Read More

Because signing as your mother's agent to pay you personally would be a conflict of interest and self-dealing, the family caregiver agreement should be signed by the alternate or substitute agent.  Keep a detailed log and receipts.  Arrange for payroll withholding.  Make sure all your siblings are on board and that no one is likely to accuse you of exploitation now or when they receive less than anticipated under the Will.  Consult an elder law attorney to make sure that all of this is done in a way which prevents North Carolina Medicaid from treating the payments as "gifts" which would disqualify your mother for Medicaid.  You can use the Find a Lawyer function on the website of the National Academy of Elder Law Attorneys (www.naela.org)... Read More

You can charge her (perhaps offsetting the costs for the care she provided during your infancy and childhood).  You should have a family caregiver agreement specifying time and task, giving each of you an "out," keep careful records and deduct for Social Security, Medicare and payroll withholding (There are services which will do this for you.)  You should make sure that this is done in a way which will not affect VA and Medicaid benefits she may need now or in the future.... Read More

From the description, it sounds as though someone needs to apply to become her guardian.  Talk with a guardianship and/or elder law attorney in your state.  You might find one on the state bar website or by using the Find a Lawyer function of the website of the National Academy of Elder Law Attorneys (www.naela.org).... Read More

Review it with a local NC lawyer, but there is little you can do if she needs to apply for medicaid in the next 5 years. You can transfer things out of her name, but if the transfers were not for consideration (i.e. instead of selling her home for fair market value and putting the money in her checking accoun, you transfer it to a child for no money), it could make her ineligible when she applies for medicaid. Plan now with an elder law attorney .... Read More

I can only speak for my own practice in California, but I draft a fair number of Advance Health Care Directives,  These were formerly called Durable Powers of Attorney for Health.  A well-drafted document carefully requires thee donor of the power decide who determines rights of access.  Named individuals can be excluded or the holder of the power can be given broad discretionary rights to limit visitation.  These powers are created by statute and you should check North Carolina law.  You probably have a County Eldercare Ombudsman or Adult Productive Services who could investigate your situation.  Good luck.  ... Read More

These types of elder law issues are difficult to deal with, and I strongly encourage you (and/or your brother) to speak with a qualified attorney who practices in this area soon.  Estate-related disputes, including breach of fiduciary duty and misuse of powers of attorney, are complicated matters, and oftentimes if the family member who suspects something is wrong doesn't act, the underlying money/estate is wasted before anything can be done about it.  My firm has extensive experience in these types of disputes, and we offer free initial consultations (as do several other firms).  Regardless, it is important to at least speak with someone, and that way you can make a more informed decision as to your best course of conduct.  I am sorry to hear about this situation and know it is difficult, but again, I encourage you to act soon.  Either way, good luck going forward. -Jay Mills   James J. Mills 2626 Glenwood Ave., Ste. 560 P.O. Box 10867 Raleigh, NC 27605 Telephone: 919.235.3824 Fax: 919.782.2311 www.burnsdaypresnell.com... Read More