Elder Legal Questions

You and your husband may sell your home (perhaps with you acting as your husband's agent under the Durable [Financial] Power of Attorney) and buy a new one in both names.  If there is money left over, after setting aside half of this money and other countable assets totalling about $130,000, the funds would be used to pay for your husband's care.  To be sure that you get it right, contact an elder lawyer near you.  You can find one on the website of the National Academy of Elder Law Attorneys (www.naela.org)... Read More

Yes, requiring supervised visitation is overreaching.  In fact, isolating people is often the first step to exploiting them.  Rather than you filing a report of this with Adult Protective Services and your aunt filing an apparently baseless report against you (You are not responsible for resolving the location of your grandfather's ashes.), try contacting the local Alternative Dispute Resolution Center.  Trained mediators will work with all concerned family members for about $50/side.  Some are trained in mediating elder law and guardianship disputes.... Read More

Either he is in assisted living or a nursing home, not both.  No one's Social Security is enough to pay for an assisted living facility or a nursing home.  Perhaps your fiance's father is in a nursing home being paid for by his Social Security and Medicaid. In any event, neither you nor your finance have visitation rights BUT his father has the right to have anyone he wants call or visit him, as long as those people have not abused, neglected or exploited him (and may do so again.) Facilities often confuse the point of contact (apparently the grandparents) as people with authority to exclude visitors. But that may not be the problem.  During the pandemic, nursing homes are allowed to exclude all but a designated "essential caregiver." Please clarify the situation.      ... Read More

It is possible and may even be likely that your father can only be cared for in a nursing home, though you could volunteer to take him into your home and give it a try. Nursing homes cost money.  It is possible and even likely that there will be nothing left to pass under your father's Will when he dies.  He must spend down to $2,000 before Medicaid (his fellow taxpayers) will pay for his care. You can consult with an elder lawyer in a nearby county if your like, but the advice is unlikely to differ.  You can find one on the website of the National Academy of Elder Law Attorneys (www.naela.org).... Read More

Please try to contact the person's agent under a Durable Power of Attorney, guardian, conservator or family member and explain the situation.  Ordinarily, an item left on someone's property for more than 30 days is deemed abandonned.  As your description indicates, this person may not know where the car is, or even that there is a car.... Read More

A home is not counted in determining Medicaid eligibility. In some states, a transfer on death or Lady Bird Deed is available to transfer the home free of Medicaid Estate Recovery. However, bank accounts available to either of you are considered in determining Medicaid eligibility:  spouses have a duty to support one another.... Read More

No one can be discharged while a Medicaid application is pending.  Medicaid pays for up to three months' of nursing home care which occurred prior to the date of the application.  While someone is in a nursing home receiving Medicaid, they are allowed a $60/month personal needs allowance.  All their other income, including Social Security, goes to pay the nursing home with their fellow taxpayers picking up the rest:  Medicaid comes out of the general tax revenues. If your friend's mother returned home, either (1) she no longer needed a nursing home level of care or (2) she transitioned to Star Plus, a Medicaid waiver program providing 30-50 hours/week of homemaker and home health care.  The personal needs allowance for Star Plus is $2,382/month (2021).  This may well mean that she can keep all her Social Security retirement benefit, using it to pay for ordinary living expenses. If the son is disabled, he should apply for Social Security benefits.  Supplemental Security Income is $794/month (2021) less a 1/3rd deduction for food and shelter provided by someone else.  If he has medical evidence proving that he was disabled before age 22, he should apply for Childhood Disabiity Benefits based on his mother's work record.  Because she is now disabled, these will be the equivalent of half of her Social Security retirement benefits (topped up to $794/month if that would be less).  When she dies, these will be the equivalent of 75% of her Social Security retirement benefits. However, if the son was "never made to work his whole life" but is able to work, it is high time that he did so.  The world does not owe him a living.  His fellow taxpayers have no obligation to pay 100% of his mother's nursing home bill so that he can continue to live off her Social Security. Please note that if your friend's mother was in the hospital for at least three days before her nursing home stay, Medicare paid for the first 20 days without copay.  If she had been able to meet the copay, it would have paid for more.  Apparently she was not.  That is why application was made to Medicaid.      ... Read More

Probably nothing.  APS is seemingly conducting an investigation regarding your mother's circumstances.  For actual legal advice you will need to retain an attorney.  The devil is in the details unfortunately.  Keep in mind that APS deals with people who have dementia on a regular basis.  Depending on the investigator you get, they are fairly used to hearing about unfounded hallucinations.  Either way, they may find that her needs are not being met with her current level of care. ... Read More

A Will might designate an executor to administer the estate but it cannot designate an agent under a power of attorney.  Both a medical and a durable [financial] power of attorney expire with the person who grants them.  You do not have rights in this situation but your mother does.  If you fear your brother is isolating her, report this to Adult Protective Services.  You may also want to talk with an elder lawyer.  You can find one near your mother on the website of the National Academy of Elder Law Attorneys (www.naela.org).  ... Read More

If your mother has legal capacity to grant a financial and a medical power of attorney but she is unable to afford an attorney, contact legal aid or volunteer legal services in this area.  Financial powers of attorney must be notarized.  A notary cannot notarize without a government issued ID bearing a photograph and signature.... Read More

Spend down to the $2000 limit during the month in which the money is received.  If your mother does not have an irrevocable prepaid funeral plan, she should buy one:  Medicaid rules specifically state that Medicaid can recover from her estate before the funeral is paid for.  There are likely things she can buy and services she can contract for to spend most of the rest.  If not, she can deposit funds in a 529 college fund for a child or grandchild and contribute to a special needs trust for someone on disability.  If she is receiving the funds this month, she can have a big Mother's Day celebration. ... Read More

While the house might need to be sold to pay for your mother's care or because she cannot make mortgage or property tax payments, a house is not counted in determining eligibility for nursing home Medicaid. That said, occupancy and caregiving confer no right to continued occupancy without a written agreement.  Move.... 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

Hire a local guardianship lawyer and also consider a suit for conversion (converting her property to their own) and, if a Durable Power of Attorney was used, for violation of fiduciary duty.  If eligibility for Medicaid was affected, report this to the county district attorney and the state attorney general for criminal prosecution.... Read More