Elder Legal Questions

You might want to switch caregivers.  Although everyone is entitled to their own opinion, only a psychiatrist can make the diagnoses this person is spouting.  Please make sure that your mother has not granted the caregiver either a Medical or a Durable [Financial] Power of Attorney. ... Read More

Any trust which under any circumstance could benefit you is countable in determining eligibility for Medicaid.  Unlike Medicare and Social Security, Medicaid does not have a trust fund paid into by paycheck deductions.  It is funded from the general tax revenues.  That is why the Medicaid eligibility rules are so strict:  it is unfair to let your neighbor set aside funds in a trust for his children and turn to you for support.... Read More

Please review what you have done to get copies of the assessments and whether you (as opposed to your mother) have a legal right to them.  You may also want to consult with an elder law attorney.  Sometimes an approach by an attorney can be more successful.  You can find one near you on the website of the National Academy of Elder Law Attorneys (www.naela.org)... Read More

If your mother is not demented, she has the legal capacity to make her own decisions.  These choices may not seem rational to you but you cannot experience what she experiences or know what she knows, regardless of whether she articulates it.  It is hard to let someone go.  But letting people live their own lives, make their own choices, die their own deaths is an act of respect and love.  That said (and experienced), you might ask your mother's physicians whether depression could be influencing her decisions.... Read More

Read the document carefully.  Many Durable Powers of Attorney provide that the successor agent shall serve if the first named agent is unable or unwilling to act.  You may not need to do anything beyond sign a dated letter stating that you are unable to act and attach it to the Durable Power of Attorney.... Read More

I am so sorry. Please report this to the Center for Medicare and Medicaid Services, the state Attorney General and to private organizations working in this area such as Long Term Care Consumer Coalition, Justice in Aging and the American Bar Association's Commission on Law and Aging.  You may also want to contact Andrews Kurth, a law firm collecting information and considering suits in this area.  It is a mounting problem.... Read More

You can bring an action in Justice of the Peace court.  You do not need a lawyer.  But please keep in mind that after you win, you must pay to enforce the judgment and there may not be anything from which to recover.  She is unlikely to have any discoverable non-exempt assets. You may do better by sending her a demand letter certified mail, return receipt requested, informing her that if she does not return the money, you will report her to the state nurses' registry.  This would affect her employment prospects.... Read More

Your grandmother can sign a new Durable Power of Attorney, revoking the old one, and present that to her current agent and everywhere the daughter may have used the DPOA, such as the bank.  If she owns a home or other real estate, it should also be recorded in the county deed records. Texas has Remote Online Notaries so she should be able to sign a new Durable Power of Attorney even though she is in a nursing home.... Read More

It appears that you have two questions. First, the trustee/beneficiary of a revocable living trust pays taxes on the earnings of the assets in the trust just as if she held them directly.  When she dies, the trust becomes irrevocable and the trust pays the taxes (at compressed brackets and so higher rates). Second, it appears that you do qualify for Medicare home health care if you need nursing, physical or speech and language therapy.  Please talk with your doctor.  Your state might also have a Medicaid waiver program for which you qualify.  You can discuss this with your local Area Agency on Aging or with an elder lawyer.  To find an elder lawyer near you, see the website of the National Academy of Elder Law Attorneys (www.naela.org).... Read More

Help your brother report to Adult Protective Services and change the names on his bank account.  Document everything the children have said and done. He can name you his agent under a Durable [Financial] Power of Attorney. If an application for guardianship is filed, you can oppose it, oppose the appointment of his children and offer to serve yourself.... Read More

Only a court can award guardianship. Ask your mother to sign a limited waiver, allowing the lawyer to disclose information to you even though your mother, not you, is the client. If you are not satisfied with the responses, know that you can file a grievance with the state bar and, if the lawyer is taking advantage of your mother, report him to APS. If the lawyer is your mother's friend, the lawyer may get to the hospital before you do and so be a reasonable choice for your mother's agent under a Medical Power of Attorney.  But there are very narrow and specific circumstances in which a lawyer becoming a client's agent under a Durable Power of Attorney and handling her finances would align with the rules of professional responsibility.... Read More

Only your son can sign a deed transferring his interest to you or to your and your daughters.  You may need to hire a P.I. to find him.  If not, whoever settles your estate can do that or can sell the house and, if he cannot be found, pay his share into the court registry for him to claim at a later date.... Read More

If your mother is receiving Medicaid, she is regarded as having access to 100% of the joint account.  That money should all go to her care.  Any gift (and this could well be seen as a gift) of $200 or more in the five years before she applies for Medicaid could disqualify her for a certain period of time.  You might do well to consult with an elder lawyer.  You can find one near you on the website of the National Academy of Elder Law Attorneys (www.naela.org).... Read More

Medicaid is not too fussy about who signs the application. Your state department of health should have the form, as should the nursing home.  A spouse is usually turned to for medical concerns if someone cannot communicate. But you may need to become your wife's guardian to access her finances. The local probate or surrogate's court and the state bar should have a list of guardianship attorneys. If you would like to discuss Medicaid planning, including how to preserve your income and some assets, you can find an elder lawyer near you on the website of the National Academy of Elder Law Attorneys (www.naela.org).    ... Read More

If the insurance check is made to you both with "OR," you need not trouble your brother to sign as your mother's agent under a Durable Power of Attorney in order to deposit it.  If the word "AND" is used, you may need to do so. Unless your mother lacks legal capacity, she can sign a deed gifting her interest now (not a good idea as it would disqualify her for Medicaid for a time) or on her death. In some states, any heir can ask the court to look into the apparently suspicious dealings of an agent under a Durable Power of Attorney.  In all states, the suspicious dealings can be reported to Adult Protective Services. If you would like to consult with an elder lawyer, you can find one near you on the website of the National Academy of Elder Law Attorneys (www.naela.org).... Read More

Even a guardian can only restrict visitors to those who have not abused or exploited the person.  In some states heirs can ask the court to look into the behavior of an agent under a Durable Power of Attorney.  You may want to contact 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