John L. Roberts
Certified Elder Law Attorney
John L. Roberts, J.D., is an Elder Law Attorney serving clients in Hampden County, MA. After practicing for 15 years, he confronted the challenges of family caregiving when his own father developed dementia. The experience transformed his practice, enabling him to help clients who are family caregivers from a place of true understanding.
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Question
Do we put my dad in a nursing home or keep him at home and risk spending everything?
This is a classic case, so common among attorneys: a brilliant lawyer who took care of everyone's business but his own. It is often... This is a classic case, so common among attorneys: a brilliant lawyer who took care of everyone's business but his own.
It is often difficult to help the person who was fiercely independent, and was so used to managing things for others. (My father was also an attorney, who slipped into dementia in his mid 80s).
But there can be some pleasant surprises. The person can realize how moving to assisted living, and then accepting supplemental help in order to stay there, removes a big burden from their daily living and opens up new opportunities for enjoyable interactions. (But the person is probably not going to admit that change of mind and heart to their adult child.)
How it comes about takes some courage and a few miracles. If I had more space, I would tell the full story of how my sister and I brought my Dad on a tour of the assisted living facility, and how he then just let us take care of the move. We faxed his health care proxy faxed over to the VA so they could get the health certification faxed over to the assisted living, and from there he enjoyed several years of daily bridge games and all the other amenities that gave us peace of mind.
It sounds like you are working alone on this. Have you considered a geriatric care manager? Getting more people on your team can help make more miracles happen. A GCM with the right personality could open up new paths to peace of mind. see more
It is often difficult to help the person who was fiercely independent, and was so used to managing things for others. (My father was also an attorney, who slipped into dementia in his mid 80s).
But there can be some pleasant surprises. The person can realize how moving to assisted living, and then accepting supplemental help in order to stay there, removes a big burden from their daily living and opens up new opportunities for enjoyable interactions. (But the person is probably not going to admit that change of mind and heart to their adult child.)
How it comes about takes some courage and a few miracles. If I had more space, I would tell the full story of how my sister and I brought my Dad on a tour of the assisted living facility, and how he then just let us take care of the move. We faxed his health care proxy faxed over to the VA so they could get the health certification faxed over to the assisted living, and from there he enjoyed several years of daily bridge games and all the other amenities that gave us peace of mind.
It sounds like you are working alone on this. Have you considered a geriatric care manager? Getting more people on your team can help make more miracles happen. A GCM with the right personality could open up new paths to peace of mind. see more
Question
How do I use a trust fund and what to use it on?
You didn't mention whether you are the Trustee of the Trust, but your question indicates that you do have the authority over the funds.... You didn't mention whether you are the Trustee of the Trust, but your question indicates that you do have the authority over the funds.
The answer depends on the terms that are written in the trust document and the needs of the trust beneficiary.
You are a fiduciary if you are the Trustee. A fiduciary is someone who manages another person's money. The trustee must act in the best interests of the person who put the funds in their trust.
Your first step would be to find an elder law attorney who can advise you on your role, the terms of the Trust, and the best way to carry out the instructions of the person who put the Trust in place. see more
The answer depends on the terms that are written in the trust document and the needs of the trust beneficiary.
You are a fiduciary if you are the Trustee. A fiduciary is someone who manages another person's money. The trustee must act in the best interests of the person who put the funds in their trust.
Your first step would be to find an elder law attorney who can advise you on your role, the terms of the Trust, and the best way to carry out the instructions of the person who put the Trust in place. see more
Question
How do you get a living trust to pay for caregiving?
You didn't mention whether your friend had put a Power of Attorney in place to manage their finances and business affairs, so it sounds... You didn't mention whether your friend had put a Power of Attorney in place to manage their finances and business affairs, so it sounds like the only fiduciary who has authority right now is the bank's trust department.
A fiduciary is someone who manages another person's money. The trustee must act in the best interests of the person who put the funds in their trust. The bank, as trustee, should be listening to your requests. You sound reasonable and it is certainly in the best interest of your friend to remain at home, in a less restrictive setting than a nursing home.
The terms written in your friend's Living Trust document should give to the bank the authority to make decisions about how to spend the money wisely for that person's benefit. If the trust office won't let you see the trust document, you can use court processes in your jurisdiction to petition for review of the trust, and how it is being administered.
Your first step would be to find an elder law attorney who can advise you on the best approach to take toward helping your friend.
The bank trustee's advice to spend down the trust funds on a nursing home may be unreasonable, and not in the best interest of your friend. An independent review of all the facts can give you some solid answers. see more
A fiduciary is someone who manages another person's money. The trustee must act in the best interests of the person who put the funds in their trust. The bank, as trustee, should be listening to your requests. You sound reasonable and it is certainly in the best interest of your friend to remain at home, in a less restrictive setting than a nursing home.
The terms written in your friend's Living Trust document should give to the bank the authority to make decisions about how to spend the money wisely for that person's benefit. If the trust office won't let you see the trust document, you can use court processes in your jurisdiction to petition for review of the trust, and how it is being administered.
Your first step would be to find an elder law attorney who can advise you on the best approach to take toward helping your friend.
The bank trustee's advice to spend down the trust funds on a nursing home may be unreasonable, and not in the best interest of your friend. An independent review of all the facts can give you some solid answers. see more
Question
Can you be a guardianship of your Mom or a POA if your already her paid PCA?
You can file a petition with the probate court in your jurisdiction, asking to be appointed Guardian. There will be notices to the public... You can file a petition with the probate court in your jurisdiction, asking to be appointed Guardian. There will be notices to the public and your mother's other family members. Then a judge will decide whether to appoint you.
To be designated her agent in a Power of Attorney document, your mother must have the capacity to understand the significance of signing the document. A person who needs Guardianship now would not have that level of understanding.
You are asking a good question. Should a person who is already a paid employee be given control over the employer's health care, treatment and finances? In some situations it's appropriate. But the responsibilities are many, and putting all the burdens of care, and management onto one person may not be best for you, or your mother. see more
To be designated her agent in a Power of Attorney document, your mother must have the capacity to understand the significance of signing the document. A person who needs Guardianship now would not have that level of understanding.
You are asking a good question. Should a person who is already a paid employee be given control over the employer's health care, treatment and finances? In some situations it's appropriate. But the responsibilities are many, and putting all the burdens of care, and management onto one person may not be best for you, or your mother. see more
Question
How do you manage the spend down if your income is only your SS check and all goes to maintaining your home?
Medicaid questions are always state-specific, so the ideas in this post can't be applied as an answer to LIFleaBag1934"s question.... Medicaid questions are always state-specific, so the ideas in this post can't be applied as an answer to LIFleaBag1934"s question. But their situation does sound dire, so I wanted to pass along some ideas that could provide hope for people who feel caught in the middle of Medicaid's income rules.
If the question is about home care services paid by Medicaid, the Medicaid agency in my state (Massachusetts) has regulations that allow people who have income over the Federal Poverty Limit to pay a deductible amount over the course of 6 months, and then qualify for Medicaid during the rest of the year. The deductible in my state is the amount that the family’s income before taxes and deductions exceeds the income standard for a six-month period. This deductible can be met when your out-of-pocket medical bills equal or exceed the deductible amount. There are many expenses that can quickly add up to meet the deductible: Medicare premiums and other health insurance premiums (which can be credited prospectively) medical treatment co-pays, over-the-counter remedies, supplies for incontinent adults, foot care, lifeline monitoring, alternative medical treatments such as acupuncture, and, of course, home health care.
If the question concerns a spouse who is already in a nursing home, federal law provides that "if either spouse establishes that the community spouse resource allowance (in relation to the amount of income generated by such an allowance) is inadequate to raise the community spouse’s income to the minimum monthly maintenance needs allowance" the state can allow an amount of assets adequate to provide a minimum monthly maintenance needs allowance (MMMNA). In my state, the community spouse may receive income in excess of the MMMNA if there are exceptional circumstances resulting in significant financial duress that justify the additional monthly income.
The take away concept here is: Mediciad regulations in many states make it possible for people to qualify for coverage. The regulations are intended to help people continue to live safely at home. The benefits of getting help from an elder law attorney who understands your specific circumstances usually make it worthwhile to consult a professional advocate near you. see more
If the question is about home care services paid by Medicaid, the Medicaid agency in my state (Massachusetts) has regulations that allow people who have income over the Federal Poverty Limit to pay a deductible amount over the course of 6 months, and then qualify for Medicaid during the rest of the year. The deductible in my state is the amount that the family’s income before taxes and deductions exceeds the income standard for a six-month period. This deductible can be met when your out-of-pocket medical bills equal or exceed the deductible amount. There are many expenses that can quickly add up to meet the deductible: Medicare premiums and other health insurance premiums (which can be credited prospectively) medical treatment co-pays, over-the-counter remedies, supplies for incontinent adults, foot care, lifeline monitoring, alternative medical treatments such as acupuncture, and, of course, home health care.
If the question concerns a spouse who is already in a nursing home, federal law provides that "if either spouse establishes that the community spouse resource allowance (in relation to the amount of income generated by such an allowance) is inadequate to raise the community spouse’s income to the minimum monthly maintenance needs allowance" the state can allow an amount of assets adequate to provide a minimum monthly maintenance needs allowance (MMMNA). In my state, the community spouse may receive income in excess of the MMMNA if there are exceptional circumstances resulting in significant financial duress that justify the additional monthly income.
The take away concept here is: Mediciad regulations in many states make it possible for people to qualify for coverage. The regulations are intended to help people continue to live safely at home. The benefits of getting help from an elder law attorney who understands your specific circumstances usually make it worthwhile to consult a professional advocate near you. see more
Question
Was told Medicare won't pay for Mom's nursing home. Is there any way to change this?
Yes, Medicare will pay the nursing home bill (for up to 100 days), if you mom spends 3 midnights in the hospital as an inpatient, and then... Yes, Medicare will pay the nursing home bill (for up to 100 days), if you mom spends 3 midnights in the hospital as an inpatient, and then she needs skilled services when she is admitted to the nursing home.
Many people don't realize they haven't been admitted to the hospital, even after spending days or weeks in a hospital bed. The story of Lee's husband Larry is one of many, many examples of hospital patients who were not covered by Medicare when they were released to a nursing home:
https://www.agingcare.com/articles/hospital-observation-status-can-be-financially-devastating-175991.htm
A SELF HELP Guide from the Center for Medicare Advocacy suggests you find out right away if you are only in the hospital for “observation.” If you are, try to get that status changed to “INPATIENT.”
medicareadvocacy/self-help-packet-for-medicare-observation-status/
If your mother is an inpatient, discharged from the hospital after 3 midnights for skilled nursing home care, Medicare will cover room and board until she no longer needs skilled services in the nursing home.
Co pays and other details of Medicare Covered Care in a Skilled Nursing Facility at:
https://www.agingcare.com/articles/Medicare-coverage-of-skilled-nursing-facility-153265.htm see more
Many people don't realize they haven't been admitted to the hospital, even after spending days or weeks in a hospital bed. The story of Lee's husband Larry is one of many, many examples of hospital patients who were not covered by Medicare when they were released to a nursing home:
https://www.agingcare.com/articles/hospital-observation-status-can-be-financially-devastating-175991.htm
A SELF HELP Guide from the Center for Medicare Advocacy suggests you find out right away if you are only in the hospital for “observation.” If you are, try to get that status changed to “INPATIENT.”
medicareadvocacy/self-help-packet-for-medicare-observation-status/
If your mother is an inpatient, discharged from the hospital after 3 midnights for skilled nursing home care, Medicare will cover room and board until she no longer needs skilled services in the nursing home.
Co pays and other details of Medicare Covered Care in a Skilled Nursing Facility at:
https://www.agingcare.com/articles/Medicare-coverage-of-skilled-nursing-facility-153265.htm see more
Question
If mom won't sign Durable POA, then what? Says she has nothing to wear and she smells too bad.
For most of us, the top questions for any new and unfamiliar idea are: "Do I really need to spend money and time on this?" and... For most of us, the top questions for any new and unfamiliar idea are: "Do I really need to spend money and time on this?" and "Can't I save myself some money by not doing this?"
If you answer the money questions properly, you help the person begin to see the many reasons to protect themselves with power of attorney:
"You'll be saving a lot of money and time if you have a Power of Attorney document. With Power of Attorney, you won't need to have us go to Probate Court to get permission to manage things for you if something happens. That would be very expensive, and your important decisions would end up going public, in front of a judge. Not having Power of Attorney would waste a great amount of money and time."
After the money saving benefits are understood, you can reassure the person with many more benefits:
"You can have your own lawyer prepare the Power of Attorney document the way you want it. Have the lawyer explain the powers that you are considering, and tell you how you can limit or expand the powers, depending on your needs."
Many elder law attorneys make house calls. I bring the laptop and printer to the home appointment, so the client can make changes as we talk about what's important. see more
If you answer the money questions properly, you help the person begin to see the many reasons to protect themselves with power of attorney:
"You'll be saving a lot of money and time if you have a Power of Attorney document. With Power of Attorney, you won't need to have us go to Probate Court to get permission to manage things for you if something happens. That would be very expensive, and your important decisions would end up going public, in front of a judge. Not having Power of Attorney would waste a great amount of money and time."
After the money saving benefits are understood, you can reassure the person with many more benefits:
"You can have your own lawyer prepare the Power of Attorney document the way you want it. Have the lawyer explain the powers that you are considering, and tell you how you can limit or expand the powers, depending on your needs."
Many elder law attorneys make house calls. I bring the laptop and printer to the home appointment, so the client can make changes as we talk about what's important. see more
Question
How do you think you will feel when your parent is gone?
For me, it was all of the above. The feelings of grief start building during the years of memory loss prior to the parent's passing. I... For me, it was all of the above. The feelings of grief start building during the years of memory loss prior to the parent's passing.
I learned that it was not healthy for me to deny the grief, or try to pretend it wasn't important.
The best advice I found was from the booklet "Experiencing Grief" by H. Norman Wright. In the middle of the booklet he drew a simple illustration of what happens when a person is in "denial" of the grief in their heart. All sorts of bad feelings sprout from that person's denial, and it can end up hurting the people around them. see more
I learned that it was not healthy for me to deny the grief, or try to pretend it wasn't important.
The best advice I found was from the booklet "Experiencing Grief" by H. Norman Wright. In the middle of the booklet he drew a simple illustration of what happens when a person is in "denial" of the grief in their heart. All sorts of bad feelings sprout from that person's denial, and it can end up hurting the people around them. see more
Question
Can the nursing home take Dad's insurance policy?
Kallen's question shows us the many different categories of assets that are listed in every Medicaid application. In my state... Kallen's question shows us the many different categories of assets that are listed in every Medicaid application. In my state (Massachusetts) the Medicaid agency grants a free pass to 1 life insurance policy if it has a Cash Surrender Value under $1,500. You can Google the regulations for Kallen's state (North Carolina) and find that her state may be more generous with cash surrender value.
If the life insurance policy doesn't have a cash surrender value ((some policies that were provided and paid up by employers before the person retired don't have C S V)) then it is not even counted against you. Term life insurance may not have a cash surrender value, but then how will you keep paying premiums to keep the policy in force if your income is taken to cover the nursing home patient paid amount?
In my state (Massachusetts) there are several ways the cash surrender value can be reduced to bring the policy into compliance.
Also, if there is a spouse living at home, a life insurance policy could be included in the asset allowance for the spouse ((called the Community Spouse Resource Allowance in my state, Community Spouse Resource Protection in some other states)).
There's so much to consider when applying, it is usually a positive cost-benefit decision to hire help with the application and asset planning. see more
If the life insurance policy doesn't have a cash surrender value ((some policies that were provided and paid up by employers before the person retired don't have C S V)) then it is not even counted against you. Term life insurance may not have a cash surrender value, but then how will you keep paying premiums to keep the policy in force if your income is taken to cover the nursing home patient paid amount?
In my state (Massachusetts) there are several ways the cash surrender value can be reduced to bring the policy into compliance.
Also, if there is a spouse living at home, a life insurance policy could be included in the asset allowance for the spouse ((called the Community Spouse Resource Allowance in my state, Community Spouse Resource Protection in some other states)).
There's so much to consider when applying, it is usually a positive cost-benefit decision to hire help with the application and asset planning. see more
Question
My sis and I have DPOA. We are concerned about undue influence exerted by Dad's long time roommate. Any advice...
I can understand why you would like to create a trust to protect your father. It sounds like the authority your father granted to you in... I can understand why you would like to create a trust to protect your father. It sounds like the authority your father granted to you in his Power of Attorney document is not enough to manage the difficult circumstances you are coping with.
In my state (Massachusetts) Section 402 of the Uniform Trust Code requires that the person creating the trust have the mental capacity to do so. But trusts for people who are not competent can be created by a Probate Court, if someone petitions and gets the authority to do so.
The Uniform Trust Code also talks about what it takes for an agent to use a power of attorney document to revoke, amend or distribute property from a revocable trust. In my state (Massachusetts) Section 602(e) requires that the trust and the POA coordinate those powers. But in your scenario, there is no trust document in existence.
The Uniform Trust Code is different in every state, and Probate laws and procedures are also state specific. Most states do not allow a settlor to create a trust and retain a beneficial interest, while at the same time denying creditors the right to reach the trust. Special provisions must be written into the trust document if your father’s money is going to fund it and needs Medicaid coverage now or within a certain period of years.
We can’t give legal advice to you in this online community, but I can suggest that you talk with an elder law attorney who could review the Power of Attorney document, understand your circumstances, and advise you on the costs and risks of Probate Guardianship in your state. Is it going to be necessary to establish a trust if your father is protected under Guardianship? With competent advice from an attorney in your state, you can make the best decisions about how to proceed.
That National Academy of Elder Law Attorneys (naela.org) and Agingcare.com have directories of elder law attorneys
Also, don’t neglect your own physical and mental health as you cope with the insanity and erratic behavior of the people you are trying to help. There are support groups available for family members, such as AlAnon and Alzheimer’s Association. These resources can help you keep perspective in the storm, so you aren’t drawn into the vortex. see more
In my state (Massachusetts) Section 402 of the Uniform Trust Code requires that the person creating the trust have the mental capacity to do so. But trusts for people who are not competent can be created by a Probate Court, if someone petitions and gets the authority to do so.
The Uniform Trust Code also talks about what it takes for an agent to use a power of attorney document to revoke, amend or distribute property from a revocable trust. In my state (Massachusetts) Section 602(e) requires that the trust and the POA coordinate those powers. But in your scenario, there is no trust document in existence.
The Uniform Trust Code is different in every state, and Probate laws and procedures are also state specific. Most states do not allow a settlor to create a trust and retain a beneficial interest, while at the same time denying creditors the right to reach the trust. Special provisions must be written into the trust document if your father’s money is going to fund it and needs Medicaid coverage now or within a certain period of years.
We can’t give legal advice to you in this online community, but I can suggest that you talk with an elder law attorney who could review the Power of Attorney document, understand your circumstances, and advise you on the costs and risks of Probate Guardianship in your state. Is it going to be necessary to establish a trust if your father is protected under Guardianship? With competent advice from an attorney in your state, you can make the best decisions about how to proceed.
That National Academy of Elder Law Attorneys (naela.org) and Agingcare.com have directories of elder law attorneys
Also, don’t neglect your own physical and mental health as you cope with the insanity and erratic behavior of the people you are trying to help. There are support groups available for family members, such as AlAnon and Alzheimer’s Association. These resources can help you keep perspective in the storm, so you aren’t drawn into the vortex. see more
Question
Mom gave my brother over $100K to buy a house. How does that affect her Medicaid application?
This question can only be answered by an adviser in your state who knows all the facts of your mother's case, and the Medicaid... This question can only be answered by an adviser in your state who knows all the facts of your mother's case, and the Medicaid regulations that apply in your state.
Has your mother already filed a Medicaid application for care in a facility? A $100,000 transfer four years ago would have to be listed on the application, and it would disqualify her. This would be a serious problem.
If your mother hasn't applied yet, you need a plan to deal with the asset transfer, the 5 year lookback period, and your mother's need for care as her health declines. Getting professional advice you can rely on, and professional preparation of the application, is the best way to protect your mother's health and financial well being. see more
Has your mother already filed a Medicaid application for care in a facility? A $100,000 transfer four years ago would have to be listed on the application, and it would disqualify her. This would be a serious problem.
If your mother hasn't applied yet, you need a plan to deal with the asset transfer, the 5 year lookback period, and your mother's need for care as her health declines. Getting professional advice you can rely on, and professional preparation of the application, is the best way to protect your mother's health and financial well being. see more
Question
How to find an elder law attorney?
You need an attorney who understands elder care (health care needs of your mother), the benefits programs that pay for elder care at home... You need an attorney who understands elder care (health care needs of your mother), the benefits programs that pay for elder care at home (Medicaid home care, Medicare, VA Aid & Attendance, private pay from income and home equity), and the probate court procedures in your jurisdiction.
Your post indicates that you are fortunate to have family members supporting you. Too often, probate court disputes involve family members who disagree over how to care for a parent, aunt or uncle. Thankfully, that doesn't seem to be your problem.
Although your post doesn't specifically explain how your family got into this situation, It sounds like a discharge planner, elder protective services agency, or some other authority has made a determination that your mother can't get the care she needs at home.
Find an attorney who is able to assemble the facts that prove home care is appropriate. Those facts come from a team of people that know the truth. In my office we use a "team sheet" to show our clients that they may already be working with qualified people in the fields of medical and mental health, social services, and financial management. Seeing the names written on the team sheet helps you see how everyone can work together more effectively.
The doctor sounds like a good source for a written report that would certify home care is suitable for your mother. You may need to add a geriatric care manager or geriatric nurse to your team, to show the court that you have a viable plan in place.
You can search for, and become familiar with, the names and qualifications of local elder law attorneys using naela.org and nelf.org. Take your list of attorneys, and ask people you trust which attorney would be effective on your team to bring your mother home.
The attorney needs the ability to take the facts of your mother's case, and apply them to the court rules to your situation. The goal is to make it easy for the judge or magistrate to see that what you are proposing is best for your mother. see more
Your post indicates that you are fortunate to have family members supporting you. Too often, probate court disputes involve family members who disagree over how to care for a parent, aunt or uncle. Thankfully, that doesn't seem to be your problem.
Although your post doesn't specifically explain how your family got into this situation, It sounds like a discharge planner, elder protective services agency, or some other authority has made a determination that your mother can't get the care she needs at home.
Find an attorney who is able to assemble the facts that prove home care is appropriate. Those facts come from a team of people that know the truth. In my office we use a "team sheet" to show our clients that they may already be working with qualified people in the fields of medical and mental health, social services, and financial management. Seeing the names written on the team sheet helps you see how everyone can work together more effectively.
The doctor sounds like a good source for a written report that would certify home care is suitable for your mother. You may need to add a geriatric care manager or geriatric nurse to your team, to show the court that you have a viable plan in place.
You can search for, and become familiar with, the names and qualifications of local elder law attorneys using naela.org and nelf.org. Take your list of attorneys, and ask people you trust which attorney would be effective on your team to bring your mother home.
The attorney needs the ability to take the facts of your mother's case, and apply them to the court rules to your situation. The goal is to make it easy for the judge or magistrate to see that what you are proposing is best for your mother. see more
Question
If I become Power of Attorney for my aging parents, am I responsible for their future expenses?
On one level, the answer to this question is clear: no, you don't become jointly liable with your parents for their expenses when you... On one level, the answer to this question is clear: no, you don't become jointly liable with your parents for their expenses when you take on the responsibility of managing their funds and financial affairs.
But the question brings up some important things to remember once you do start acting for your parents. Under the power of attorney, you are acting as a fiduciary: a person responsible for other peoples' money. So, considering the question with that in mind, you have carefully fulfill your responsibilities.
Like the trustee at the bank who manages funds for the bank customers, you can be held liable for you parents' expenses if you transfer their funds to yourself or use their money in a way that goes against their interests. see more
But the question brings up some important things to remember once you do start acting for your parents. Under the power of attorney, you are acting as a fiduciary: a person responsible for other peoples' money. So, considering the question with that in mind, you have carefully fulfill your responsibilities.
Like the trustee at the bank who manages funds for the bank customers, you can be held liable for you parents' expenses if you transfer their funds to yourself or use their money in a way that goes against their interests. see more
Question
Can I use my POA for my Dad to establish a Trust that reflects his will to avoid probate?
Section 402(a) of the Uniform Trust Code in my state (Massachusetts) says that a trust shall be created ONLY IF:the settlor [the grantor,... Section 402(a) of the Uniform Trust Code in my state (Massachusetts) says that a trust shall be created ONLY IF:the settlor [the grantor, person establishing the trust] has capacity to create a trust.
The Uniform Trust Code in my state does allow an agent acting under a power of attorney to have the powers to revoke, amend or distribute trust property in an existing trust, but only to the extent expressly authorized by the terms of the trust and the power of attorney documents. [Section 602(e)].
https://malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter203E/Article6/Section602
Consult with an attorney in your state. A Power of Attorney document must include certain powers if you are going to make transfers that would benefit you. If the document lacks the necessary powers, you will be creating serious problems if you go beyond your authority.
You may already have considered other significant issues. If your father needs nursing home care, any transfers you make with his assets will have an impact on whether Medicaid will pay for his care.
The concept of a Power of Attorney was conceived many years ago, to provide a way for those of us with modest means to give advance directions about our assets and property, without needing to pay the costs of establishing a trust instrument.
If the banking laws in your state allow you to set up accounts for your Dad so that the funds are TOD (Transferred on Death) or POD (Payable on Death) or jointly owned, you might accomplish the intent of probate avoidance.
If the Power of Attorney allows you to transfer real estate, you could make arrangements that avoid probate. But, again, you must consult an attorney in your state who can advise on real estate, tax and Medicaid laws.
A final thought you could bring to your attorney is the idea of a "pooled trust." Charitable institutions In my state have established pooled trusts for elderly and disabled clients. The pooled trust administrators have accepted the authority of a power of attorney to open an account in the pooled trust for beneficiaries who lack competence. Each pooled trust has administration fees and rules, but it might be an idea to consider. see more
The Uniform Trust Code in my state does allow an agent acting under a power of attorney to have the powers to revoke, amend or distribute trust property in an existing trust, but only to the extent expressly authorized by the terms of the trust and the power of attorney documents. [Section 602(e)].
https://malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter203E/Article6/Section602
Consult with an attorney in your state. A Power of Attorney document must include certain powers if you are going to make transfers that would benefit you. If the document lacks the necessary powers, you will be creating serious problems if you go beyond your authority.
You may already have considered other significant issues. If your father needs nursing home care, any transfers you make with his assets will have an impact on whether Medicaid will pay for his care.
The concept of a Power of Attorney was conceived many years ago, to provide a way for those of us with modest means to give advance directions about our assets and property, without needing to pay the costs of establishing a trust instrument.
If the banking laws in your state allow you to set up accounts for your Dad so that the funds are TOD (Transferred on Death) or POD (Payable on Death) or jointly owned, you might accomplish the intent of probate avoidance.
If the Power of Attorney allows you to transfer real estate, you could make arrangements that avoid probate. But, again, you must consult an attorney in your state who can advise on real estate, tax and Medicaid laws.
A final thought you could bring to your attorney is the idea of a "pooled trust." Charitable institutions In my state have established pooled trusts for elderly and disabled clients. The pooled trust administrators have accepted the authority of a power of attorney to open an account in the pooled trust for beneficiaries who lack competence. Each pooled trust has administration fees and rules, but it might be an idea to consider. see more
Question
What I feared happened, the VA is saying no to the Independent Living place Mom was moved to. Has this happene...
The medical eligibility requirements for Aid & Attendance, and the many misunderstandings that people have about the pension, were... The medical eligibility requirements for Aid & Attendance, and the many misunderstandings that people have about the pension, were dramatized several years ago by the daughter of a World War II Veteran during a US Senate subcommittee hearing several.
The daughter testified how someone assured her mother and father they could get Aid & Attendance to pay rent at an Independent Living facility. Her 90 year old parents sold their house and moved to the independent living. Then her mother died, and the VA denied her father’s application for Aid & Attendance because he was healthy and did not need the Aid & Attendance level of care. The veteran did not understand the medical rules for Aid & Attendance when he decided to sell the house and move to the facility.
The veteran or surviving spouse must need assistance with activities of daily living. Proof of the need for attendance from a doctor’s evaluation of the veteran, or surviving spouse is required. It’s very important that the medical evidence be
reviewed by someone familiar with the VA. Even if the veteran or spouse does qualify, if the applicant’s medical needs are not explained properly, the VA case worker may deny the application.
The VA published a letter in 2012 that discusses Room and Board as a Deductible Unreimbursed Medical Expense:
http://masshealthhelp.com/pdf/2012_VA_letter.pdf
But without experienced assistance with the application process, the VA rules are difficult to understand.
Thank you for posting your mother's story. It will raise awareness, and may help other people avoid these serious difficulties that you are going through. see more
The daughter testified how someone assured her mother and father they could get Aid & Attendance to pay rent at an Independent Living facility. Her 90 year old parents sold their house and moved to the independent living. Then her mother died, and the VA denied her father’s application for Aid & Attendance because he was healthy and did not need the Aid & Attendance level of care. The veteran did not understand the medical rules for Aid & Attendance when he decided to sell the house and move to the facility.
The veteran or surviving spouse must need assistance with activities of daily living. Proof of the need for attendance from a doctor’s evaluation of the veteran, or surviving spouse is required. It’s very important that the medical evidence be
reviewed by someone familiar with the VA. Even if the veteran or spouse does qualify, if the applicant’s medical needs are not explained properly, the VA case worker may deny the application.
The VA published a letter in 2012 that discusses Room and Board as a Deductible Unreimbursed Medical Expense:
http://masshealthhelp.com/pdf/2012_VA_letter.pdf
But without experienced assistance with the application process, the VA rules are difficult to understand.
Thank you for posting your mother's story. It will raise awareness, and may help other people avoid these serious difficulties that you are going through. see more
Question
Are there income guidelines for the spouse of deceased veteran?
The VA has posted its Survivors Pension Rate Tables at http://benefits.va.gov/pension/current_rates_survivor_pen.asp But their explanation... The VA has posted its Survivors Pension Rate Tables at
http://benefits.va.gov/pension/current_rates_survivor_pen.asp
But their explanation for the Aid & Attendance pension is difficult to follow. Do you have a local veterans agent or veterans service agency in your community? It is important to obtain the help of an experienced person if you are preparing an application for VA benefits. see more
http://benefits.va.gov/pension/current_rates_survivor_pen.asp
But their explanation for the Aid & Attendance pension is difficult to follow. Do you have a local veterans agent or veterans service agency in your community? It is important to obtain the help of an experienced person if you are preparing an application for VA benefits. see more
Question
Can my father-in-law get Veterans benefits if he was a World War 2 vet?
Your question focuses on the need for medical equipment for at home care. Your description of your father's medical condition indicates... Your question focuses on the need for medical equipment for at home care.
Your description of your father's medical condition indicates he should qualify for a VA Aid and Attendance pension. If a veteran was honorably discharged and served ninety consecutive days active duty, with at least one day during war time, the veteran (and spouse) can be be eligible.
The Aid and Attendance benefits can be combined with Social Security and other pension income, to make at-home long term care possible for the veteran (and/or spouse).
The current maximum pension Aid & Attendance amount for a single veteran is: $21,107 / year ($1,758 / month).
Source: http://benefits.va.gov/PENSION/current_rates_veteran_pen.asp
To decide whether to award the pension, the VA looks at your father's assets and his monthly income. If his total assets are not likely to sustain him and his unreimbursed medical expenses (this is the key concept in the application for the pension) are equal to or greater than his income, he is entitled to the maximum Aid & Attendance benefit.
Unreimbursed Medical expenses include at-home care if the applicant cannot be left alone at home. If the applicant lives in an assisted living facility because he or she cannot live alone, the assisted living rent can also be covered by Aid & Attendance.
Family members (not including a spouse), can be paid to provide care. Here are other examples of unreimbursed medical expenses:
Medicare part A or Medicare part B premiums,
prescription drug co pays, and over the counter drugs if directed by a physician,
home health care aides
transportation for medical purposes
dentist visits
other regularly occurring medical expenses
After deducting the Unreimbursed Medical expenses, the VA calls the remaining net income amount “Income for VA Purposes” or “IVAP.”
Again, the key to understanding how the pension works is how an applicant’s health care costs offset their income. Without significant medical expenses (meaning expenses that are paid for out-of-pocket by your father and not reimbursed by Medicare or health insurance) the veteran or spouse cannot qualify for Aid & Attendance. The unreimbursed medical and health care expenses offset the income amounts.
It sounds like you may be preparing an overall plan of at-home care for your father. Keeping the plan and the expenses consistent is important. One veteran, who was receiving Aid & Attendance to reimburse him for the cost of home health aides, was not capable of understanding the important link between income, expenses and the pension. The veteran needed home health aides to assist him, because of dementia and health problems. The VA awarded him the full pension amount to pay for the care. Then one day the veteran decided to terminate the home health care services. Because the VA audits Aid & Attendance payments every year, they saw that the veteran no longer had unreimbursed expenses for the home health aides. The VA terminated his pension!
If you want to coordinate sources of payment such as Medicare, Medicaid and Aid & Attendance, an elder law attorney can help you consider all the options.
If you are focused only on the VA pension and there is a local veteran's agent or agency, they can help you prepare the Aid & Attendance application.
Best wishes to you and your family, and thank you for taking care of your father! see more
Your description of your father's medical condition indicates he should qualify for a VA Aid and Attendance pension. If a veteran was honorably discharged and served ninety consecutive days active duty, with at least one day during war time, the veteran (and spouse) can be be eligible.
The Aid and Attendance benefits can be combined with Social Security and other pension income, to make at-home long term care possible for the veteran (and/or spouse).
The current maximum pension Aid & Attendance amount for a single veteran is: $21,107 / year ($1,758 / month).
Source: http://benefits.va.gov/PENSION/current_rates_veteran_pen.asp
To decide whether to award the pension, the VA looks at your father's assets and his monthly income. If his total assets are not likely to sustain him and his unreimbursed medical expenses (this is the key concept in the application for the pension) are equal to or greater than his income, he is entitled to the maximum Aid & Attendance benefit.
Unreimbursed Medical expenses include at-home care if the applicant cannot be left alone at home. If the applicant lives in an assisted living facility because he or she cannot live alone, the assisted living rent can also be covered by Aid & Attendance.
Family members (not including a spouse), can be paid to provide care. Here are other examples of unreimbursed medical expenses:
Medicare part A or Medicare part B premiums,
prescription drug co pays, and over the counter drugs if directed by a physician,
home health care aides
transportation for medical purposes
dentist visits
other regularly occurring medical expenses
After deducting the Unreimbursed Medical expenses, the VA calls the remaining net income amount “Income for VA Purposes” or “IVAP.”
Again, the key to understanding how the pension works is how an applicant’s health care costs offset their income. Without significant medical expenses (meaning expenses that are paid for out-of-pocket by your father and not reimbursed by Medicare or health insurance) the veteran or spouse cannot qualify for Aid & Attendance. The unreimbursed medical and health care expenses offset the income amounts.
It sounds like you may be preparing an overall plan of at-home care for your father. Keeping the plan and the expenses consistent is important. One veteran, who was receiving Aid & Attendance to reimburse him for the cost of home health aides, was not capable of understanding the important link between income, expenses and the pension. The veteran needed home health aides to assist him, because of dementia and health problems. The VA awarded him the full pension amount to pay for the care. Then one day the veteran decided to terminate the home health care services. Because the VA audits Aid & Attendance payments every year, they saw that the veteran no longer had unreimbursed expenses for the home health aides. The VA terminated his pension!
If you want to coordinate sources of payment such as Medicare, Medicaid and Aid & Attendance, an elder law attorney can help you consider all the options.
If you are focused only on the VA pension and there is a local veteran's agent or agency, they can help you prepare the Aid & Attendance application.
Best wishes to you and your family, and thank you for taking care of your father! see more
Question
My Dad just passed and brother had POA and I believe he squandered Dad's money. How do I get an audit?
You can request the bank account statements and other verifying documents from the POA. How to enforce your request depends on your... You can request the bank account statements and other verifying documents from the POA. How to enforce your request depends on your state's laws and how much you want to spend if court proceedings are necessary.
Did the Power of Attorney document include a clause that required the Attorney-in-Fact (Agent) to provide regular accountings to your father and to other family members? This is important to remember for the future, as you review your own Power of Attorney document.
Also, problems caused by Agent's who don't act in the interests of their principal are caused by money they don't spend on services that are needed to provide proper care and companionship. You can check your own motives by keeping the focus on the needs of the person who needs protection and care. see more
Did the Power of Attorney document include a clause that required the Attorney-in-Fact (Agent) to provide regular accountings to your father and to other family members? This is important to remember for the future, as you review your own Power of Attorney document.
Also, problems caused by Agent's who don't act in the interests of their principal are caused by money they don't spend on services that are needed to provide proper care and companionship. You can check your own motives by keeping the focus on the needs of the person who needs protection and care. see more
Question
I've been accused of stealing from my dad, but I'm not. What can I do?
The problems explained in this discussion are all too common, and put an extra burden on the good people who have stepped up to help a... The problems explained in this discussion are all too common, and put an extra burden on the good people who have stepped up to help a loved one. But when you step back and look at the situation from the viewpoint of third parties, you can see how misunderstandings get started.
The adult child here who takes care of their father explains how "We pay his bills using our own money and then use his to pay us back." This practice is a prescription for confusion. At a minimum, you should have a separate checking account that takes in your father's income and disburses payment for his expenses. This is the simplest way to keep a clear record of how his money is being spent. Mingling his money with yours, and then paying his expenses from your own account makes it difficult or impossible to see his transactions clearly. The system you are using may require you to disclose information about your own finances to prove that you have done nothing improper.
The problem is compounded as "his bank statements always show purchases in our area, and not his."
If your father's finances involve more than one or two bank accounts you need to make a list of all his accounts, along with his Social Security Retirement Income, dividends, and other income. List the principal balance for each account, and the monthly income it produces. You can call this list: Schedule A.
When you look at Schedule A, you (and anyone else you show the list to) can see how much income your father has each month.
Made another list showing his expenses. Call this chart: Schedule B.
Show the Name of Expense and the expense Amount.
Make a new Schedule A and Schedule B every month, so you can see how your father’s needs are met. If you subtract the expenses paid in Schedule B from the total principal balance of Schedule A, everyone can always see the financial resources that remain available for care.
The Probate Courts in the state where I live (Massachusetts) use a similar format to account for funds of people who cannot manage their own money. You said that a caregiver company "placed a guardian over him" because you missed one payment. You didn't explain how that happened or whether your father received due process. Hopefully your family's finances won't become part of public probate proceedings.
Using an organized system to keep your father's funds separate from yours can provide a better way. see more
The adult child here who takes care of their father explains how "We pay his bills using our own money and then use his to pay us back." This practice is a prescription for confusion. At a minimum, you should have a separate checking account that takes in your father's income and disburses payment for his expenses. This is the simplest way to keep a clear record of how his money is being spent. Mingling his money with yours, and then paying his expenses from your own account makes it difficult or impossible to see his transactions clearly. The system you are using may require you to disclose information about your own finances to prove that you have done nothing improper.
The problem is compounded as "his bank statements always show purchases in our area, and not his."
If your father's finances involve more than one or two bank accounts you need to make a list of all his accounts, along with his Social Security Retirement Income, dividends, and other income. List the principal balance for each account, and the monthly income it produces. You can call this list: Schedule A.
When you look at Schedule A, you (and anyone else you show the list to) can see how much income your father has each month.
Made another list showing his expenses. Call this chart: Schedule B.
Show the Name of Expense and the expense Amount.
Make a new Schedule A and Schedule B every month, so you can see how your father’s needs are met. If you subtract the expenses paid in Schedule B from the total principal balance of Schedule A, everyone can always see the financial resources that remain available for care.
The Probate Courts in the state where I live (Massachusetts) use a similar format to account for funds of people who cannot manage their own money. You said that a caregiver company "placed a guardian over him" because you missed one payment. You didn't explain how that happened or whether your father received due process. Hopefully your family's finances won't become part of public probate proceedings.
Using an organized system to keep your father's funds separate from yours can provide a better way. see more
Mom has been on Medicaid for 2 years. She has been named in a will of about $25,000.00. How should I report th...
If "yes" (the person has passed away) you will have to report to Medicaid that your Mother has received a gift. Check the Medicaid rules in your state, but you will probably find that disclaiming (declining to accept) the bequest from the will counts are a disqualifying transfer.
If there is no spouse at home, and the rules say your Mother cannot have more than $2,000 in the bank, the money will have to be used for a non-countable asset (such as pre paid funeral, burial account) or spent down for her care.
Also, consider setting the money aside in a Pooled Trust, to supplement the care that the nursing home is providing. 42 U.S. Code § 1396p(d)(4)(C) allows a Medicaid beneficiary to put assets into a Pooled Trust established and managed by a non-profit association, with a separate account maintained for each beneficiary of the trust, solely for the benefit of individual, and as long as any money remaining in the beneficiary’s account upon the death of the beneficiary are paid to the State from such remaining amounts in the account an amount equal to the total amount of medical assistance paid on behalf of the beneficiary.
https://www.law.cornell.edu/uscode/text/42/1396p
If you consult with an elder law attorney near you, you can get complete advice on non countable assets, pooled trust accounts, and any other options that are available to help your mother. see more