Question:  Would you please provide me with some information re: gifting as it relates to VA planning for Aid & Attendance.  It is my understanding that there are no penalties involved for gifting assets in order to reduce resources to approved levels.  Mom’s income is less than the medical expenses that she will pay in the assisted living facility, but her assets are a bit too high.

Answer:  At this time, gifting does not create penalties (or periods of ineligibility) for the purposes of VA pension benefits.  That being said, gifting for VA purposes may create penalties (periods of ineligibility) for the purposes of future applications for Medi-Cal for skilled nursing facilities.  Any time you do gifts for VA purposes, you should be structuring a plan that ensures that you will not be creating periods of ineligibility for future Medi-Cal applications.  Often a stroke, hip fracture, heart attack, or some other unexpected medical hospitalization and subsequent discharge to a skilled nursing facility will create a need for Medi-Cal benefits within the look-back period (currently 30 months after the gift was made, or 60 months in the case of gifts to irrevocable trusts, and 60 months for all gifts in the future when the Deficit Reduction Act is implemented with filing of final regulations with the Secretary of the State of CA).  If you have not structured the gifts to create either no period of ineligibility or very minimal period of ineligibility, then you will have shot yourself in the Medi-Cal foot when you do your VA pension gifts.  Because the gifting rules for Medi-Cal are complicated, see an experienced California attorney who knows the current rules about gifting.  Be sure to ask the attorney if they are experienced in the laws governing gifting under Medi-Cal and if they can structure a gifting program that will not create a period of ineligibility, or that will greatly minimize any gifting period of ineligibility.  Also, if you are thinking of gifting real estate, the rules are even more complicated for purposes of VA pension or Medi-Cal, and you will need an attorney with experience in both areas of law.  Any time you gift an asset that has appreciated in value since purchase, there will be tax issues to evaluation, discuss, and account for—income tax issues, capital gains step-up issues, 121 exclusions, property tax reassessment issues, so do not try to do this on your own.  Lastly, when someone needs VA pension now, it is not unlikely that they will need Medi-Cal within a matter of months or a few years, so always consider that VA gifts may create Medi-Cal penalties if not structured properly.   The area of gifts for VA and Medi-Cal is not a do-it-yourself proposition.  Get good legal advice and guidance. 

Dallas Leigh Atkins, Esq.
Law Offices of Dallas Atkins
Santa Barbara, CA  93101
805-687-8782
www.AtkinsElderCareLaw.com
Member of the national ElderCare Matters Alliance, California chapter

Answer:  The fact that your mother granted you and your brother her power of attorney is a good indication that she trusts the two of you (and is, perhaps, relying on you) to step in to protect her interests when you think protection is warranted.  You should look into her situation and her finances as far as your power of attorney allows, while at the same time respecting whatever level of autonomy your mother is capable of exercising.  It might be appropriate to enlist the input of her physician or other medical providers who are in a position to shed light on her medical condition.  Hopefully, your mother has given her medical providers her written permission to share her health information with you.  She may have done this in her advance health-care directive, her "HIPAA authorization," or other estate planning or health care documents.  If she has not done so, her medical providers will probably decline to talk with you.

POSSIBLE ACTION STEPS:  (1) Get clear with your brother on your specific concerns.  (2) Agree with your brother on who (if anyone) should be consulted concerning your mother's medical condition and her finances.  (3) Approach your mother with your concerns and let her know that you are there to make sure her interests are protected.  If you can involve your mother’s physician or other family members or trusted individuals, that will probably promote her comfort level.

If your mother clearly understands that you are endeavoring to act in her best interest, she will probably appreciate the attention that you are focusing on her. 

Scott Makuakane, Esq., CFP
Founding Partner, Est8Planning LLLC
Honolulu, Hawaii  96813
www.est8planning.com
Member of the national ElderCare Matters Alliance, Hawaii chapter, State Coordinator

Answer:  If you are a professional who helps families plan for or deal with ANY of their elder care matters, then you owe it to yourself to be listed on America's #1 online source for "Elder Care Experts"….

ElderCareMatters.com

ElderCareMatters.com is where you will find more than 2,000 competent, caring elder care experts located across America, including:

• Elder Law Attorneys
• Estate Planning Advisors
• Financial Planners
• Investment Advisors
• Geriatric Care Managers
• Insurance Professionals
• Life Care Planners
• Professional Organizers
• Reverse Mortgage Lenders
• Senior Move Managers
• Senior Real Estate Professionals
•  Tax Advisors
• Aging in Place Professionals
• Daily Money Managers
• And other elder care experts with long and successful careers working with seniors and their families

This is also where you will find some of America's best:

• Assisted Living Communities
• Alzheimer's / Memory Care Communities
• Continuing Care Retirement Communities
• Home Care Agencies

Together, we provide families across America with:

• Unparalleled professional expertise
• Up-to-date elder care information & answers to your elder care questions
• Competent, caring assistance with a wide range of elder care services

So if you are a competent, caring elder care professional who helps families with ANY of their elder care matters, then request today an Application for Membership in the national ElderCare Matters Alliance and get listed on ElderCareMatters.com - America's #1 source for "Elder Care Experts" plus information and answers about a wide range of elder care matters.

Phillip G. Sanders, MBA, MSHA, CPA
Founder & CEO
ElderCare Matters, LLC
ElderCareMatters.com

Answer:  Assuming you have a valid financial or general power of attorney that complies with state law, you need to check the document.  When does the document say the power is effective?  Some are effective immediately upon signing it.  In that case, you can use the power right now.  She may, however, try to revoke it. 

Most powers of attorney, however, are considered “springing.”  That means the power of attorney is effective upon some triggering event, usually incapacity.  The document should say how incapacity will be determined.  For example, some say that the principal (the person who signed the power of attorney) must be determined to be incapacitated by two physicians.  If such a requirement is in the document, then you will need written statements from the physicians stating that she cannot manage her financial affairs.  Those statements should be kept with the power of attorney and made a part of it.

Remember that financial institutions may not accept the power of attorney.  Some will not accept a power that is a certain number of years old.  Others will look for certain clauses that may or may not me in your document.  And some financial institutions seem to give people a hard time just because.  It is very difficult to try to force a financial institution to accept a power of attorney.

If your power of attorney turns out to be ineffective for whatever reason, you may need to petition the court for a conservatorship.

Ronald Zack, Esq.
Tucson, Arizona
520-331-3232
www.TucsonEstatePlanning.com

Answer:  The correct answer is "It depends". It depends on your unique family, health, and financial situation. Tax consequences also have to be considered. In the event you need long-term care, there is a five year look-back period that applies to gifts (transfers of assets without consideration). Thus, if you are faced with a chronic or catastrophic illness within five years after you transfer the home to your children; such transfer may impact your ability to obtain Medicaid (Title 19) benefits. This is a very complicated area of the law and requires careful consideration.

If it makes sense to transfer the home to your children, there are several ways to structure the transfer. The first is an outright gift to your children. This is generally not advisable for tax reasons and asset protection purposes. The second is by completing the transfer but retaining a life estate. While generally superior to an outright gift, this is also not without problems. However, the retained life estate does give you some legal control over the property and also preserves some tax benefits associated with inherited property versus gifted property. The third is a transfer of your home to an irrevocable trust. This is usually the preferred method of protecting the home as it balances tax benefits with asset protection issues and also protects the home from your children's creditors or in the event they should predecease you.

As you can see, the transfer of your home is something that requires careful consideration and sound legal counsel.

Paul T. Czepiga, Esq., CELA
Czepiga Daly Dillman, LLC
Newington, CT  06111
860-597-7995
www.CtSeniorLaw.com
Member of the national ElderCare Matters Alliance, Connecticut chapter

Answer:  Wow, I would be worried also, without any assurances in writing.  Please understand that there are a number of issues in your question, all rolled into one.  First, when your mother entered the assisted living facility, she or, perhaps a family member acting on her behalf, probably signed a contract.  It is important to know what provisions are contained in the contract to see if, in fact, what you have been told verbally is in the written agreement.  Second, you said your mother moved into assisted living.  However, unless it is a continung care community or one of the few supportive living facilities in Illinois that take Medicaid, most assisted living facilities do not accept Medicaid, so more information is needed. Third, you don't mention how your mother is paying for the assisted living facility and what other assets she may have, so it's difficult to asses how soon she may need assistance paying for care.  The house presents a trickier issue.  Is there a possibility your mother intends to return to her home?  If so, the home may not be considered an available asset for purposes of qualifying for Medicaid.  The home may also be exempt if a "qualifying family member" is living in the home.  She may be allowed to transfer the home to a qualifying family member.  However, if she does not intend to return home, if there is no qualifying family member living in the home, and the home is sold, there may be planning strategies that could preserve some of the funds for her use, rather than to spend them all down before qualifying.  Bottom, line, it is not a simple question, and you would be well served by seeking the advice of an experienced elder law attorney in your area who could sort out all the issues and recommend planning strategies rather than rely on verbal assurances of the facility representative.

Teresa Nuccio, Esq.
Teresa Nuccio & Associates, P.C.
Park Ridge, Illinois  60068
847-823-9576
www.teresanuccio.com
Member of the national ElderCare Matters Alliance, Illinois chapter

Answer:  Georgia Medicaid policy, found at Section 2332 et seq. of VOLUME II/MA, MT 39-08/10 titled “Retirement Funds”, expressly exempt retirement funds, including, Individual Retirement Accounts (IRAs) Keogh plans, and some retirement profit sharing plans are “exempt” or non-countable resources for Aged, Blind, or Disabled classes of Medicaid, including Long-Term Care (Nursing Home) Medicaid if owned by the applicant/recipient if the applicant/recipient applies for “periodic” distributions.  To be eligible for ABD Medicaid, the individual must apply for periodic benefits.  If s/he has the choice between periodic payments and a lump sum, the individual must apply for periodic payments. 

A “lump” sum is a liquidation of the retirement fund.  There’s no requirement in the Medicaid plan that payments be taken monthly; payments can be made annually.  The Medicaid policy states “[p]eriodic retirement benefits are payments made to an individual at some regular interval (e.g. monthly).  The signal, “e.g.” means “for example”.  As a result, the use of “monthly” in the policy is intended only as an example of what “periodic payments” means.  

The caseworker is directed to determine if the applicant for Nursing Home Medicaid is eligible for periodic payments from the IRA.  If not, can the individual make a lump sum withdrawal.  If the individual is eligible and receiving periodic payments, the payments are treated as “income” only; the fund is disregarded as an asset. 

A retirement fund belonging to an applicant/recipient’s spouse is disregarded, regardless as to whether periodic payments are made. 

The income is budgeted with other sources of income the applicant receives.  For example, if she has Social Security retirement and the IRA distributions, these amounts make up her income.  Once Medicaid eligibility is established, Medicaid calculates a “patient liability” or cost-share which is her contribution toward the costs of her long-term care.  Patient liability is paid over to the nursing home each month.  

The IRA does not designate the State as the beneficiary upon death; she can designate whomsoever she wishes. 

It sounds like the Medicaid caseworker communicating with this family is confusing the treatment of an “annuity” with the treatment of “retirement funds” for Nursing Home Medicaid eligibility purposes.

David Paul Pollan, Esq.
The Pollan Law Firm
Atlanta, Georgia  30309
678-510-1358
www.PollanLawFirm.com
Member of the national ElderCare Matters Alliance, Georgia chapter

Answer:  If you have a loved one living in a nursing home, it is important for you to understand what constitutes abuse and neglect, and how to recognize the warning signs.  Abuse and neglect comes in many different forms and may affect a resident physically, mentally and emotionally.  The most important things to look for if you suspect abuse or worry about the welfare of your loved one include: falls, cuts and bruises, the development of bed sores, sudden weight loss, anxiety or agitate behavior, overmedication, poor hygiene, unsanitary conditions, or a sudden change in the resident’s disposition or behaviors. Residents and their families have a right to question a nursing home's care decisions. If you believe a loved one is receiving substandard care in a nursing home, you should discuss their care plan with staff.  If you suspect that your loved one has been seriously injured as a result of nursing home abuse or neglect, you should contact a nursing home lawyer who can help you determine if you have a case against the facility.

Steven M. Levin, Esq., Co-Founder & Senior Partner
Levin & Perconti
Chicago, Illinois  60654
312-332-2872
www.LevinPerconti.com
Member of the national ElderCare Matters Alliance, Illinois chapter

Heather R. Chubb, Attorney at Law
The Chubb Law Firm
Gold River, CA  95670
916-635-6800
www.ChubbLawFirm.com
Member of the national ElderCare Matters Alliance, California chapter

Answer:  If you have an account that is set up with a beneficiary, that is payable on death to a particular person, it is not necessary for this account to be included in your revocable living trust.  The premise behind the payable on death account is that when the account holder dies the account will legally belong to the beneficiary.  This is one way to avoid the probate process for an individually owned account.  Presumably, one of the reasons you would create a trust is also to avoid probate of your assets upon your death. 

If the account is owned by your revocable living trust, because the trust does not “die,” the pay on death feature will never be triggered.  In any event, I’m not certain that bank would allow an account owned by a trust to also carry a payable on death designation. 

Although not absolutely necessary, including this account in your trust is a good idea and will help centralize the management of all your assets in the event of your incapacity or death and make life easier for your family.  If the account is in your trust you can use your trust distribution instructions to indicate that this account go to a specific person.  This is called a specific distribution.

Answer:  It is my pleasure to provide you with the following list of the 87 different elder care services that are currently provided by the members of the national ElderCare Matters Alliance on ElderCareMatters.com:

1. Accounting Services
2. Adult Day Care
3. Advance Medical Directives
4. Aging in Place Services
5. Alzheimer's / Memory Care Communities
6. Annuities
7. Arbitration
8. Asset Protection Planning
9. Assisted Living Communities
10. Assisted Living Referral Services
11. Bankruptcy
12. Bill Paying
13. Budgeting
14. Caregiving Education
15. Companion Care
16. Conservatorship
17. Consumer Law
18. Continuing Care Retirement Communities
19. Cremation Services
20. Crisis Intervention
21. Daily Money Management
22. Dementia Care
23. Disability Income Insurance
24. Disability Planning
25. Elder Abuse Litigation Services
26. Elder Law
27. ElderCare Planning
28. Estate Administration
29. Estate Liquidation
30. Estate Planning
31. Family Law
32. Financial Planning
33. Funeral Services
34. Geriatric Care Management
35. Guardianship
36. Health Insurance
37. Hoarding Clean Up and Coaching Services
38. Home Care
39. Home Downsizing Services
40. Home Health Care
41. Home Modifications
42. Hospice Care
43. Independent Living Communities
44. Investment Services
45. Life Care Planning
46. Life Insurance
47. Litigation
48. Long Term Care Insurance
49. Long Term Care Planning
50. Medicaid Planning
51. Medical Services
52. Medical Alert Systems
53. Medical Claims Processing
54. Medical Equipment & Supplies
55. Medical Malpractice Litigation
56. Medicare Consulting
57. Medicare Supplemental Insurance
58. Medication Management Services
59. Moving Services
60. Nursing Homes
61. Personal Finance
62. Powers of Attorney
63. Probate
64. Professional Organizing
65. Public / Non-Profit Resources
66. Real Estate Services
67. Rehabilitation Services
68. Residential Psychiatric Care
69. Respite Care
70. Retirement Planning
71. Reverse Mortgages
72. Securities Arbitration & Litigation Services
73. Senior Housing
74. Senior Move Management
75. Senior Move Planning
76. Senior Relocation Services
77. Social Security Disability Services
78. Special Needs Planning
79. Tax Law
80. Tax Planning
81. Tax Preparation
82. Transportation Services
83. Trustee / Fiduciary Services
84. Trusts
85. VA Benefits
86. Wills
87. Wound Care

The goal of ElderCareMatters.com is to provide families across America with the help they need to plan for and deal with their elder care matters.  Let us know if there are other elder care services that you would like to have us list on ElderCareMatters.com – America's #1 source for Elder Care Experts plus information & answers about a wide range of elder care matters.

Phillip G. Sanders, MBA, MSHA, CPA
Founder & CEO, ElderCare Matters, LLC
ElderCareMatters.com
1-877-379-4500

Answer:  ElderCareMatters.com is an elder care resource to help families across America plan for and deal with their elder care matters.  With this goal in mind, we will continue to add more elder care-related services to ElderCareMatters.com in order to make this online elder care resource invaluable for families looking for help in planning for and/or dealing with their elder care matters.

Below are the 72 different elder care services currently listed on ElderCareMatters.com (with more services soon to be added): 

1. Adult Day Care
2. Advance Medical Directives
3. Aging in Place Services
4. Alzheimer's / Memory Care Communities
5. Annuities
6. Arbitration
7. Asset Protection Planning
8. Assisted Living Communities
9. Assisted Living Referral Services
10. Bankruptcy
11. Caregiving Education
12. Consumer Law
13. Continuing Care Retirement Communities
14. Crisis Intervention
15. Daily Money Management / Bill Paying
16. Dementia Care
17. Disability Income Insurance
18. Elder Abuse Litigation Services
19. Elder Law
20. ElderCare Planning / Long-Term Care Planning
21. Estate Administration
22. Estate Liquidation
23. Estate Planning
24. Financial Planning
25. Funeral Services
26. Geriatric Care Management
27. Guardianship / Conservatorship
28. Health Insurance
29. Hoarding Clean Up and Coaching Services
30. Home Care
31. Home Downsizing Services
32. Home Health Care
33. Home Modifications
34. Hospice Care
35. Independent Living Communities
36. Investment Services
37. Life Care Planning
38. Life Insurance
39. Litigation
40. Long-Term Care Insurance
41. Medicaid / Disability Planning
42. Medical / Healthcare
43. Medical Alert Systems
44. Medical Claims Processing
45. Medical Equipment & Supplies
46. Medicare Consulting
47. Medicare Supplemental Insurance
48. Medication Management Services
49. Moving / Relocation Services
50. Personal Finance / Accounting / Tax Preparation
51. Powers of Attorney
52. Probate
53. Professional Organizing
54. Public / Non-Profit Resources
55. Real Estate Services
56. Rehabilitation Services
57. Residential Psychiatric Care
58. Respite Care
59. Retirement Planning
60. Reverse Mortgages
61. Securities Arbitration & Litigation Services
62. Senior Move Management
63. Senior Move Planning
64. Social Security Disability Services
65. Special Needs Planning
66. Tax Law
67. Tax Planning
68. Transportation Services
69. Trustee / Fiduciary Services
70. Trusts
71. VA Benefits
72. Wills

If you need help with your family's elder care matters, you can count on ElderCareMatters.com to provide you with the experts, information & answers you need to plan for and deal with your elder care matters.

Phillip G. Sanders, MBA, MSHA, CPA
Founder & CEO of ElderCareMatters.com
1-877-379-4500

Answer:  Our commitment at ElderCare Matters is to provide families across America with elder care resources (Experts, Information & Answers) to help them plan for and deal with their elder care matters.  To this end, we have no set # of experts that we will showcase on ElderCareMatters.com but rather we are inviting ALL competent, caring elder care professionals across America to become a part of this phenonmenal elder care resource.

ElderCare Matters is where you will find 1,579 Elder Care Experts near YOU (and this # is growing daily) who have years of experience in helping families with elder care matters, including:

• Elder Law Attorneys
• Estate Planning Advisors
• Financial & Investment Advisors
• Geriatric Care Managers
• Insurance Professionals
• Reverse Mortgage Lenders
• Senior Move Managers
• Tax Advisors
• Daily Money Managers
• Other elder experts with long and successful careers working with seniors and their families

This is also where you will find some of America's best:

• Assisted Living Communities
• Alzheimer's / Memory Care Communities
• Continuing Care Retirement Communities
• Home Care Agencies

So if you help families plan for and/or deal with elder care matters and you are a competent, caring elder care professional, then you should be listed on ElderCareMatters.com – America's #1 source for Elder Care Experts plus information and answers about a wide range of elder care matters.

To request an Application for Membership to the national ElderCare Matters Alliance, send an email directly to: info@ElderCareMatters.com

Phillip G. Sanders, MBA, MSHA, CPA
Founder & CEO of ElderCare Matters
ElderCareMatters.com
1-877-379-4500

Phillip G. Sanders, MBA, MSHA, CPA
Founder of ElderCareMatters.com
1-877-379-4500

This week's Featured Elder Care Expert on ElderCareMatters.com is Phillip G. Sanders, MBA, MSHA, CPA, Founder of  ElderCareMatters.com, America's #1 online source for Elder Care Experts plus information & answers about a wide range of elder care matters.

Every day this week (M-F), Mr. Sanders will answer one of your questions about this online elder care resource that helps families across America plan for and deal with their issues of aging.

One selected question along with Mr. Sanders' answer will be posted on the Featured  Elder Care Question of the Day section of ElderCareMatters.com.

So if you would like to ask the Founder of ElderCareMatters.com a question, just send a short email (a few sentences please) to: Questions@ElderCareMatters.com.

And remember to bookmark ElderCareMatters.com and check back often to see if your question is our Elder Care Question of the Day.

Answer:  The best thing to do is to get your Mother (and Dad, if possible) to sign a power of attorney form, giving you the right to handle their financial affairs. If they have a checking account, I suggest you take the executed Power of Attorney form to their bank and become a signatory on their checking account. Once both sign the POA form, there will be no need to “separate” their money.  Hope this helps.

To find  competent, caring elder care professionals across America who are located near You and can help you with your elder care matters, go to: www.ElderCareMatters.com - A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

Gregory D. Roberts, CFP, CLU, ChFC, CLTC, EA
Life Solutions
Aiken, South Carolina  29803
803-617-9805
Member of the national ElderCare Matters Alliance, South Carolina chapter 

Answer:   Yes, there are planning steps you can take now.  First, check with your local agencies, such as the Area Council on Aging to find out what eldercare services are available in your area. You may find that there are adult day care centers that cost nothing or are very reasonably priced. Next, determine out what the cost of eldercare is in your community. These providers will include home health care agencies, nursing homes, and assisted living facilities. Prices vary, so survey the market carefully.

Involve your children and inform them of your wishes in the event you need custodial eldercare services, and write down your wishes. Name one of your children or friends that you trust as your eldercare coordinator. As an aside, it is always a good idea to consult with an attorney and have a durable power of attorney drafted, as well as a living will.

If you have assets available for possible eldercare expenses, you should designate those as being for that purpose. If you have existing life insurance or annuity policies, it may be possible to leverage those products by re-positioning them into products that can provide enhanced eldercare dollars in the event that you need them. Check with your financial advisor.

To find  competent, caring elder care professionals across America who are located near You and can help you with your elder care matters, go to: www.ElderCareMatters.com - A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

Gregory D. Roberts, CFP, CLU, ChFC, CLTC, EA
Life Solutions
Aiken, South Carolina  29803
803-617-9805
Member of the national ElderCare Matters Alliance, South Carolina chapter 

Answer:  Whether or not your parents’ deposit qualifies as an exempt asset under Medicaid depends on whether the contract is a lease agreement or a contract to purchase a unit.  At many assisted living residences the contract is a lease agreement, not ownership, and will not qualify.  In Massachusetts, home ownership is required to qualify for the exemption for your home.  The home ownership exemption, however, is not valid if he is not able to return home.  As a result, many clients who own homes will protect them and their life-savings with an asset protection trust.  That way the deposit at an assisted living residence can be funded with home sale proceeds or other savings and continue to be protected in the trust even if they get sick in a nursing home and are no longer able to satisfy the requirement of “intending to return home.”  As a result of the asset protection trust there is more flexibility and greater protection for life savings, without the otherwise required ability to return home.

To find  competent, caring elder care professionals across America who are located near You and can help you with your elder care matters, go to: www.ElderCareMatters.com - A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

Dennis B. Sullivan, Esq., LLM, CPA
Estate Planning & Asset Protection Law Center of Dennis Sullivan & Assoc.
Wellesley, Massachusetts  02482
781-237-2815
Member of the national ElderCare Matters Alliance, Massachusetts chapter 

Answer:   As far as the Veterans Administration is concerned, the home your father owns is considered his home whether or not he is currently living there and will not impact his eligibility for benefits.  One thing you and your family should be careful of, however, is renting the home.  If you rent the home and its classification switches from residential property to rental property, it may be considered an asset and cost your father his veteran’s benefits.

To find  competent, caring elder care professionals across America who are located near You and can help you with your elder care matters, go to: www.ElderCareMatters.com - A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

Dennis B. Sullivan, Esq., LLM, CPA
Estate Planning & Asset Protection Law Center of Dennis Sullivan & Assoc.
Wellesley, Massachusetts  02482
781-237-2815
Member of the national ElderCare Matters Alliance, Massachusetts chapter 

Answer:  There is a 5 year look back period for Medicaid.  Any asset transfers, including gifts, made within this 5 year look back window will trigger a penalty period of ineligibility to receive Medicaid benefits.  There are ways to avoid triggering these penalties but an outright gift is not one of the ways.  

As an example of the problem with making an outright gift, if your grandfather gifts to you $200,000 today and in 3 years requires skilled care, the gift of $200,000 will render him ineligible for Medicaid benefits for a significant period.  During the period of ineligibility he, or you, will have to pay for any nursing home care. 

In Massachusetts, the homestead protection will not keep your grandfather’s $200,000 from the reach of nursing homes, but a primary residence is often an exempt asset for Medicaid (Mass Health).  In Massachusetts however, the nursing home or skilled care facility will be able to put a lien on your home if you use a portion of his $200,000 gift to purchase the home and put his name on the deed.  

However, since you are buying your home in Florida, it may be to your grandfather’s advantage to have him contribute to the new house and count it as his “homestead”.  If he requires nursing home care in Florida, it is my understanding that his $200,000 would be exempt, but you should check with an attorney in Florida.  

If your grandfather is truly seeking to protect assets from the reach of nursing homes, setting up an asset protection trust is often the recommended option.  Creating an irrevocable trust starts the 5 year look back clock as soon as the trust is funded.  Once the property is in the trust, your grandfather can make any type of gift or transfer he so chooses without “resetting” the 5 year look back period.  In addition the irrevocable trust allows your grandfather to protect ALL of his assets while allowing access to income.  As another added benefit, your grandfather’s life savings will be left to his loved ones without the need for probate.

To find  competent, caring elder care professionals across America who are located near You and can help you with your elder care matters, go to: www.ElderCareMatters.com - A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

Dennis B. Sullivan, Esq., LLM, CPA
Estate Planning & Asset Protection Law Center of Dennis Sullivan & Assoc.
Wellesley, Massachusetts  02482
781-237-2815
Member of the national ElderCare Matters Alliance, Massachusetts chapter 

Answer:  Generally, a fiduciary is a person who manages property for the benefit of another, exercises discretionary authority or control over an asset(s), and/or renders comprehensive and continuous investment advice.  When you accept the role to trustee, you are a fiduciary and accordingly you become personally liable to all trust beneficiaries.  Liability is not determined by the performance of investments but by whether you followed “prudent investment practices”.   

The Prudent Investor Act sets forth 7 Uniform Standards of Care to avoid being found liable for investments losing value:

1. Know standards, laws, and trust provisions.
2. Diversify assets to the specific risk/return profile of the trust.  Each trust and beneficiary will have specific cash flow requirements and risk return objectives.  The interests of all need to be weighed.
3. Prepare an Investment Policy Statement (IPS).  The IPS is basically a business plan for the trust’s investments.  It lays out goals and policies regarding trust investments.
4. Use “prudent experts” (lawyers, money managers, CPAs) and document due diligence.  Unless you are an experienced professional this can be a daunting task.  Any slip up and you could be paying out of your pocket.  Hiring an expert, so long as you use due diligence in determining their qualifications, and your liability is eliminated.
5. Control and account for investment expenses.  It is your role to make sure that the trust is paying a fair fee for the professional services.
6. Monitor the activity of “prudent experts”.  Monitoring the investment professional is part of using due diligence.  You, as trustee, want to be sure the money manager is not taking funds and is working toward accomplishing the goals stated in the IPS.
7. Avoid conflicts of interest and prohibited transactions.  Although this seems silly, trustees often violate this principal.  A trustee cannot use entrusted assets for personal or business gain.   

This is one of the most common areas of litigation we see today.  Especially with the market falling and stocks losing value, people are afraid to make changes and are standing still, thinking that if they do nothing they will not be liable for losses.  NOT TRUE.  Trustees do not need to personally guarantee every investment decision is successful.  What a trustee should do is follow a system that ensures you are following the Prudent Investor Act standards.  There is a 5 Step Investment Management Process you can use to be sure you are within the prudent investor standard:

1. Analyze Current Position.  This is where you review current investment activates, disbursements, investing strategies and policies, and legal constraints.  You examine what the trust’s investment picture currently looks like.
2. Design the Optimal Portfolio.  This is where you propose optimal asset allocation strategies and suggest any changes, keeping in mind the current market.
3. Formalize Investment Policy.  The policy should include investment objectives, guidelines, as well as guidelines for selecting and monitoring money managers, if you have them.
4. Implement Policy.  Here you would propose a number of alternative money manager structures, negotiate favorable fees and coordinate brokerage services.
5. Monitor & Supervise.  In monitoring the investments you would prepare detailed monthly appraisal and transaction report as well as quarterly reports that compare performance of the trust’s investments against the performance of the market and the state objectives.  

To answer your question, as long as you followed the 7 Uniform Standards of Care and the 5 step process for managing investments you will not be found liable for any investment losses. 

To find  competent, caring elder care professionals across America who are located near You and can help you with your elder care matters, go to: www.ElderCareMatters.com - A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

Dennis B. Sullivan, Esq., LLM, CPA
Estate Planning & Asset Protection Law Center of Dennis Sullivan & Assoc.
Wellesley, Massachusetts  02482
781-237-2815
Member of the national ElderCare Matters Alliance, Massachusetts chapter 

Answer:  If the power of attorney (POA) is valid in the state in which it was written, it should be valid in any state even if you are the secondary agent. You may have to prove that the primary has died through a death certificate. Assuming the POA grants you the right to make decisions regarding your mother's assets such as the power to write checks, to pay bills and deposit checks payable to your mother, living in another state should have no impact on a transfer of authority. One note of caution: The bank may view and make a copy of the original POA, but under no circumstances should they keep the original document. You will need the original document in the event your mother has assets with more than one financial institution.

To find competent, caring elder care professionals across America who are located near You and can help you with your elder care matters, go to: www.ElderCareMatters.com - A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

William "Bill" Brown, Attorney at Law
2999 E. Dublin-Granville Road
Suite 217
Columbus, Ohio  43231-4030
614-890-9099
Member of the national ElderCare Matters Alliance, Ohio chapter

Answer:  Yes, a trust can be named the beneficiary of an income annuity; however, it must be done 5 years (60 months) prior to eligibility for Medicaid in order to be a non-countable resource for Medicaid purposes. The spouse could be the primary beneficiary with the state the ultimate beneficiary.

To find competent, caring elder care professionals across America who are located near You and can help you with your elder care matters, go to: www.ElderCareMatters.com - A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

William "Bill" Brown, Attorney at Law
2999 E. Dublin-Granville Road
Suite 217
Columbus, Ohio  43231-4030
614-890-9099
Member of the national ElderCare Matters Alliance, Ohio chapter

Answer:  My suggestion is that you call the Dept. of Veteran's Affairs, Benefits Information Claims. The toll free number is 1-800-827-1000.  Hope this helps.

To find other competent, caring elder care professionals across America who are located near You and can help you with your elder care matters, go to: www.ElderCareMatters.com - A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

William "Bill" Brown, Attorney at Law
2999 E. Dublin-Granville Road
Suite 217
Columbus, Ohio  43231-4030
614-890-9099
Member of the national ElderCare Matters Alliance, Ohio chapter

Answer:  In most cases I have recommended that the parents set up a living trust using "handicapped" language for the disabled child. This provides the disabled child supplemental care without loss of federal or state benefits and provides a better lifestyle. In addition, other children that are not disabled or handicapped can inherit their shares in a normal manner. There is no need to "disinherit" the disabled or handicapped individual. 

In some cases a "Medicaid payback" trust may be used where the disability is the result of an injury or an accident and there is a sizeable insurance settlement that might reduce or eliminate Medicaid benefits. The theory is that the settlement dollars will be invested and the "payback" to Medicaid upon the death of the beneficiary will still leave a significant amount for the beneficiary's heirs, siblings or others.

To find competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com - A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

William "Bill" Brown, Attorney at Law
2999 E. Dublin-Granville Road
Suite 217
Columbus, Ohio  43231-4030
614-890-9099
Member of the national ElderCare Matters Alliance, Ohio chapter

William "Bill" Brown, Attorney at Law
2999 E. Dublin-Granville Road
Suite 217
Columbus, Ohio  43231
614-890-9099
Member of the national ElderCare Matters Alliance, Ohio chapter

This week's Featured Elder Care Expert is William "Bill" Brown, Attorney at Law, Member of the Ohio chapter of the national ElderCare Matters Alliance (a network of  almost 1,500 elder care experts).  Attorney Brown has practiced in the areas of probate, elder law, trusts and estate planning for over 50 years, and is the author of "Trusts" and "Estate Planning a Practical Guide".

Every day this week (M-F), Mr. Brown will answer one of your questions about his areas of expertise , and this selected question along with Mr. Brown's answer will be posted on the Featured Elder Care Question of the Day section of ElderCareMatters.com.

So if you would like to ask Attorney Brown a question about one of your elder care matters, just send a short email (a few sentences only please) to: questions@ElderCareMatters. com.  

And remember to bookmark ElderCareMatters.com and check back often to see if your question is our Featured Elder Care Question of the Day.

Answer:  Temporary guardianship can be obtained quickly; it is possible to have a temporary guardian appointed the same day the petition is filed. The length of time required for the guardianship process when an emergency does not exist depends upon the availability of information necessary for preparation of court papers, the availability of a judge, the type of notice required to satisfy the Constitution under the circumstances of the case, and the existence of complicating factors, such as disagreement among interested parties, controversial issues, etc. In routine cases the most time-consuming process is preparing the documents and gathering the information for the presentation of the case. It is important to thoroughly investigate the case before filing it, because it cannot be withdrawn later without the court's permission. One is not permitted to file a frivolous court case and, if the case is filed and later investigation reveals that there is no justification for the case, there can be serious consequences for the petitioner and also for the petitioning attorney.

Once the case is filed, it usually takes from 14 days to two months for a decision to be reached by the court. The fact that a temporary guardian may have been appointed does not determine whether a permanent guardian will be appointed.

To find competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com - A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

Janna Dutton, Attorney at Law
Founding Partner
Dutton & Casey, P.C.
Chicago, Illinois  60603
312-899-0950
Member of the national ElderCare Matters Alliance, Illinois chapter

Answer:  Yes, guardianship is meant to protect the person and property of those who cannot manage for themselves, but it must be used with caution. Guardianship is an extreme form of intervention in the life of a person, because control over personal and/or financial decisions is transferred to someone else for an indefinite, often permanent, period. Once established, it can be extremely difficult to revoke, even if the guardian or the original petitioner believe that guardianship is no longer necessary. If the courts require expert testimony to support the revocation of guardianship, experts may be hesitant to certify that the person does not need guardianship. The right to privacy and independence in determining how to manage one's own affairs is paramount and should be limited or removed only for the gravest cause.

The law requires that guardianship be used only if it will promote the well-being of the person with disabilities and protect the person with disabilities against neglect, exploitation, and abuse, and encourages development of maximum self reliance and independence.

Orders of protection are defined under the Illinois Domestic Violence Act of 1986, and the Probate Act incorporates the provisions of the IDVA by reference. The Probate Act provides that all IDVA procedures for the issuance, enforcement and recording of orders of protection shall also be available in guardianship cases. Consequently, an order of protection may be joined together with a plenary or temporary petition for adjudication of disability, and a court may enter both orders of protection and orders appointing guardians in the same proceeding.

To find competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com - A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

Janna Dutton, Attorney at Law
Founding Partner
Dutton & Casey, P.C.
Chicago, Illinois  60603
312-899-0950
Member of the national ElderCare Matters Alliance, Illinois chapter

Answer:  There are several types of guardianship available under the Illinois Probate Act. It is important that all available options be considered to determine the appropriate form of guardianship for a specific person with disabilities. In each case, consideration should be given to requesting either limited or plenary guardianship. Limited guardianship is used when the person with disabilities can make some, but not all, decisions regarding his/her personal care and/or finances.

The basic forms guardianship can take follow:

1. Limited Guardianship – used when the person with disabilities can make some, but not all, decisions regarding his/her person and/or estate. "Guardianship shall be ordered only to the extent necessitated by the individual's mental, physical and adaptive limitations." A limited guardian makes only those decisions about personal care and/or finances which the ward cannot make. The powers of a limited guardian must be specifically listed in the court order. The ward retains the power to make all other decisions regarding his/her person or estate. Limited guardianship may be used to appoint a limited guardian of the person, a limited guardian of the estate, or both.
2. Plenary Guardianship – used when the "individual's mental, physical and adaptive limitations" necessitate a guardian who has the power to make all important decisions regarding the individual's personal care and finances. Plenary guardianship may be used for the person, the estate, or both.
3. Guardianship of the Person – used when a person, "because of his disability, lacks sufficient understanding or capacity to make or communicate responsible decisions regarding the care of his person." The guardian of the person makes decisions regarding the "support, care, comfort, health, education,…maintenance, and…professional services" (such as educational, vocational, habilitation, treatment and medical services) for the person under guardianship who is called a ward.
4. Guardianship of the Estate – used when the person "because of his disability…is unable to manage his estate or financial affairs". A guardian of the estate makes decisions about management of the ward's property and finances.
5. Temporary Guardianship – used in an emergency situation. Temporary guardianship can last no longer than 60 days and is a means to assure that the person who evidences need for guardianship receives immediate protection.
6. Successor Guardianship – used upon the death, disability, or resignation of the initially appointed guardian, when guardianship is still needed.
7. Testamentary Guardianship – used by parents of a person with disabilities and designates, by will, a person who assumes the guardianship appointment upon the death of a parent. The designated person must still be appointed by the court before he/she can serve as guardian. The court will consider the designated person but is not bound by the testamentary designation. It can appoint someone else if the proposed guardian is found to be inappropriate.

To find competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com - A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

Janna Dutton, Attorney at Law
Founding Partner
Dutton & Casey, P.C.
Chicago, Illinois  60603
312-899-0950
Member of the national ElderCare Matters Alliance, Illinois chapter

Answer:  The fact that a person has a mental disability does not automatically dictate a need for guardianship. The test for determining the need for guardianship focuses on the ability of the person to make decisions and to properly communicate decisions once made. Making incorrect or ill-advised decisions on a periodic basis is not the test. Rather, it is an inability to engage in the decision making in the first place which is important. A practical set of questions that may be addressed are as follows:

1. Does the person understand that a particular decision needs to be made?
2. Does the person understand the options available in any decision?
3. Does the person understand the consequences of each option?
4. Is the person able to properly inform appropriate parties once the decision has been made?

The inability to make sound decisions about where to live, where to work, how and when to seek medical care or other professional services, how to properly care for dependents, and how to purchase items like food and clothing is indication that a person may be in need of some guardianship services.

To find competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com - A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

Janna Dutton, Attorney at Law
Founding Partner
Dutton & Casey, P.C.
Chicago, Illinois  60603
312-899-0950
Member of the national ElderCare Matters Alliance, Illinois chapter

Answer:  A power of attorney is a legal document signed by you that grants another individual power to act and make decisions on your behalf. It may be general or limited to specific matters, such as finances or healthcare.

A guardianship, on the other hand, is a power granted by a court at the request of a third party to take control over your person, with or without your prior or current consent.

Generally speaking, a guardian has the same powers over his ward as a parent has over a minor child, unless those powers are specifically curbed by the court that granted them.

A power of attorney is generally preferable to a guardianship. Powers of attorney can be setup quickly and inexpensively and allow you to choose who will have powers over you, while guardianships can be long and expensive to put in place and leave the choice of a guardian in the hands of the court.

To find competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com - A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

Janna Dutton, Attorney at Law
Founding Partner
Dutton & Casey, P.C.
Chicago, Illinois  60603
312-899-0950
Member of the national ElderCare Matters Alliance, Illinois chapter

Answer:  It depends what you mean by “respite care.”  If you mean this in the most general way, that is, finding an alternative source of supervision and assistance for your loved one while you are at work, then you can certainly do that on a regular scheduled basis.  You might arrange for a caregiver to come in to your home, or you might find an adult day center in your area.   Many adult day centers will provide transportation between the client’s home and the center, and they typically provide one or more meals each day.  In both of these cases, the client or family will need to pay for these services as they are not covered by Medicare.  If the client has long term care insurance, these services are typically covered expenses under the terms or the policy.  Some adult day centers offer a sliding scale payment structure or are subsidized by local or state governments.   In some states, clients who are covered by Medicaid are also eligible for services in the community on a regularly scheduled basis as part of a “diversion” or “waiver” program where the goal is to keep these individuals out of nursing homes which are generally more costly.  However, since Medicaid is a state run program, you need to become familiar with what is available in your state.

To find competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com - A FREE online resource to find elder care experts plus elder care information & answers to your elder care questions.

Sheri Samotin, President
LifeBridge Solutions, LLC
Naples, Florida  34108
239-325-1880
Member of the ElderCare Matters Alliance, Florida chapter

Answer:  This type of question comes up frequently and the answer depends upon the details of the Power of Attorney document that your mother signed back when she had capacity.  Each state has its own standards with regard to the construction of durable power of attorney rights, but even within that variation, it depends upon what the lawyer who drafted the agreement did or did not include.  If your family was my client, I would advise your brother that it is always best for the person who is serving as POA to be as transparent as possible in performing his duties, but in the end of the day, it is up to that person (the POA) to manage your mother’s affairs in accordance with the POA document and his best judgment.  While you can’t “force” your brother (the POA) to include you and your sibling in decision-making regarding your mother’s affairs, you can request that he does so.  Perhaps you can suggest that the three of you hold a family meeting (either in person or by phone) to discuss things.  If you are concerned that the POA will refuse or that the conversation might quickly become unpleasant, you might want to suggest that the POA engage an objective third party to facilitate the meeting.  This person’s fees would be paid for either from your mother’s funds or equally by the three of you.  The third party could be the attorney who drafted the original agreement, another attorney, a family transition coach, or any other neutral party with skill and experience in such situations.

To find competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com - A FREE online source to find elder care experts plus information & answers about a wide range of elder care matters.

Sheri Samotin, President
LifeBridge Solutions, LLC
Naples, Florida  34108
239-325-1880
Member of the ElderCare Matters Alliance, Florida chapter

Answer:  This will depend on laws of the state in which your mother resides.  However,  a doctor's report will be needed to show that your mother is incapable of managing her own affairs.

To locate competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com - A FREE online source to find elder care experts plus information & answers about a wide range of elder care matters.

John E. Settle, Jr., Esq.
John E. Settle, Jr., Attorney at Law 
Bossier City, Louisiana  71111
318-742-5513
Member of the ElderCare Matters Alliance, Louisiana chapter

Answer:  A health care power of attorney would be important if you became mentally incompetent–authorizing an agent to make health care decisions for you.

To locate competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com - A FREE online source to find elder care experts plus information & answers about a wide range of elder care matters.

John E. Settle, Jr., Esq.
John E. Settle, Jr., Attorney at Law 
Bossier City, Louisiana  71111
318-742-5513
Member of the ElderCare Matters Alliance, Louisiana chapter

Answer:  I would NOT risk losing Medicaid over this car. I suggest buying the car for a nominal price.

To locate competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com - A FREE online source to find elder care experts plus information & answers about a wide range of elder care matters.

John E. Settle, Jr., Esq.
John E. Settle, Jr., Attorney at Law 
Bossier City, Louisiana  71111
318-742-5513
Member of the ElderCare Matters Alliance, Louisiana chapter

Answer:  Forced heirship applies when a child is under the age of twenty four, or if a child is permanently disabled (either mentally or physically).  A parent is only required to give part of his estate to a forced heir – -one fourth of the estate to one forced heir and one-half if two or more forced heirs.

To locate competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com - A FREE online source to find elder care experts plus information & answers about a wide range of elder care matters.

John E. Settle, Jr., Esq.
John E. Settle, Jr., Attorney at Law 
Bossier City, Louisiana  71111
318-742-5513
Member of the ElderCare Matters Alliance, Louisiana chapter

John E. Settle, Jr., Attorney at Law

John E. Settle, Jr., Esq.
1915 Citizens Bank Drive    
Bossier City, LA 71111
Telephone: 318-742-5513
e-mail:   Send E-Mail
website: http://www.SettleLawFirm.com

This week's Featured Elder Care Expert is John E. Settle, Jr., Attorney at Law, Member of the Louisiana chapter of the national ElderCare Matters Alliance (a network of 1,450+ elder care experts) and Founder of the Law Office of John E. Settle, Jr., a law firm in Bossier City, Louisiana, a firm that specializes in Elder Law, Estate Planning, Elder Abuse Litigation and closely related practice areas. 

Every day this week (M-F), Mr. Settle will answer one of your questions about his areas of expertise (Elder Law, Estate Planning, Elder Abuse, Probate, etc), and this selected question along with Mr. Settle 's answer will be posted on the Featured Elder Care Question of the Day section of ElderCareMatters.com.

So if you would like to ask Mr. Settle a question about one of your elder care matters, just send a short email (a few sentences only please) to: questions@ElderCareMatters. com.  And remember to bookmark ElderCareMatters.com and check back often to see if your question is our Featured Elder Care Question of the Day.

Answer:  It is a great idea to have a relationship with an elder law attorney so that your family and friends know who to turn to if something were to happen.  The attorney can help them with decisions if you have a serious illness or require extended care.  The attorney can also help them through the estate administration process after you pass away.  Creating a relationship with a good elder law attorney does not have to be expensive.  Many attorneys either charge a fixed fee for their help or charge hourly only for the work they do for you.  When you meet with an attorney, he or she can talk about how they charge and help work with you to make sure that you are comfortable with how things would be handled.

To locate competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com - A FREE online source to find elder care experts plus information & answers about a wide range of elder care matters.

Angela N. Manz, Attorney at Law
The Law Firm of Angela N. Manz
Virginia Beach, VA  23452
757-271-6275
Member of the ElderCare Matters Alliance, Virginia chapter

Answer:  Although I don’t know exactly what benefit this gentleman applied for through the VA, I would highly recommend that he look into the Aid and Attendance pension to help pay for assisted living.  Aid and Attendance is available for veterans (or their widowed spouses) who served at least 90 days of active duty, with one day during a period of wartime.  They do not have to have been in combat.  

To be eligible, the veteran (or his widowed spouse) must have recurring medical expenses or care costs such as the Medicare premium, supplemental insurance premiums, prescription drugs, etc.  The VA also allows the monthly rent at an assisted living community as a medical expense if the veteran’s doctor states that he needs assistance with some of his daily activities, such as making meals, driving, bathing, dressing, taking medications, or if he needs a protective environment due to dementia. 

If the veteran moved to assisted living, that monthly cost may lower his income enough for him to qualify.  I would recommend that your acquaintance contact an attorney who is accredited with the VA and talk with that attorney about how to qualify. The maximum pension for a married veteran is $1949 per month and the maximum for a single veteran is $1644 per month.   If he obtains this pension, these tax-free benefits will help pay for his assisted living so that he can get the care that he needs.

To locate competent elder care professionals who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com - A FREE online source to find elder care experts across America plus information & answers about a wide range of elder care matters.

Angela N. Manz, Attorney at Law
The Law Firm of Angela N. Manz
Virginia Beach, VA  23452
757-271-6275
Member of the ElderCare Matters Alliance, Virginia chapter

Answer:  Generally, a POA or Health Care Proxy does not necessarily need to be redone simply because your mother moved to another state.  However, I recommend that you have them reviewed by an elder law attorney who practices in Georgia to make sure that they comply with Georgia law and to make sure that they have all of the necessary powers needed to make decisions for your mother.  For instance, if Georgia law requires that the health care proxy be notarized and New York does not, then you may need a new one prepared or it won’t be accepted.  Or if your mother’s POA does not have certain powers which may be necessary for asset protection planning, then you may want to have a new one prepared. If the attorney in Georgia does recommend that your mother sign new documents, he or she should also tell you the specific reasons why that recommendation was made. 

To locate competent elder law attorneys who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com - A FREE online source to find elder care experts plus information & answers about a wide range of elder care matters.

Angela N. Manz, Attorney at Law
The Law Firm of Angela N. Manz
Virginia Beach, VA  23452
757-271-6275
Member of the ElderCare Matters Alliance, Virginia chapter

Answer:  A power of attorney is one of the most important documents that you can execute. It allows you to appoint an agent to manage your financial affairs if you become unable to do so. Without a power of attorney, if you become incapacitated your family will have to go to court to have a judge determine who will manage your financial affairs.  That can be both costly and time consuming and is easily avoided by having a comprehensive power of attorney. 

Many people use the internet to obtain a power of attorney in order to avoid going to an attorney. These internet forms seem simple to complete and are not expensive.  The biggest problem though is that these forms are not tailored to your specific family’s needs and are often missing many important powers that your agent should have. 

The most important function of a power of attorney is that it sets out the specific powers that your agent will have if you become unable to make financial decisions on your own. These powers generally include buying or selling property, managing your bank accounts, paying bills, investing money, cashing checks, and collecting debts. 

In many states your agent only has the powers that are specifically listed in the power of attorney.  This means that a broad statement that your agent can do anything you can do is simply not enough.  Your power of attorney must list out each power you want your agent to have.  

The powers stated in your power of attorney can vary greatly depending on your wishes and your family’s situation.  Some powers are typically not included on an online power of attorney, and therefore it is important to consult an attorney rather than filling out a premade form. For example, the power to transfer money to your children, or to create and fund an irrevocable trust, is generally not included in an online power of attorney, but these can be extremely important powers for your agent to have if you need to do Medicaid or Veterans benefits planning in the future.   

By having a power of attorney, your family can avoid the court process and feel secure about your future. While it is tempting to avoid legal fees by completing an online premade form, I recommend that you seek the advice of an experienced attorney. With your attorney’s help, you can rest assured that your wishes will be carried out should you become unable to manage your finances in the future.

To locate competent elder law attorneys who are located near You and can help you with this type of elder care matter, go to: www.ElderCareMatters.com - A FREE online source to find elder care experts plus information & answers about a wide range of elder care matters.

Angela N. Manz, Attorney at Law
The Law Firm of Angela N. Manz
Virginia Beach, VA  23452
757-271-6275
Member of the ElderCare Matters Alliance, Virginia chapter

This week's Featured Elder Care Expert is Angela N. Manz, Attorney at Law, Member of the ElderCare Matters Alliance (a network of 1,450+ elder care experts) and Founder of the Law Office of Angela N. Manz, a law firm in Virginia Beach, Virginia, that specializes in Elder Law, Estate Planning, and closely related practice areas. 

Every day this week (M-F), Ms. Manz will answer one of your questions about her areas of expertise (Elder Law & Estate Planning), and this selected question along with Ms. Manz 's answer will be posted on the Featured Elder Care Question of the Day section of ElderCareMatters.com.

So if you would like to ask Ms. Manz a question about your elder care matter, just send a short email (a few sentences only please) to: questions@ElderCareMatters. com.

And remember to bookmark ElderCareMatters.com and check back often to see if your question is our Featured Elder Care Question of the Day.

Answer:  Whether giving away assets is a good strategy for your parents will depend on a number of factors including their age, health, how they feel about giving up control over their assets, and how they feel about having less flexibility regarding where care can be provided.  

Oftentimes assets are given directly to a child with the thought that the child will use the funds for the parents later when the need arises.  But a true and complete gift does not come with strings, once given to the child there is no legal obligation on the part of the child to help mom and dad later.  What if the child does have good intentions to help mom and dad, but divorces, is sued, is influenced by a spouse, or is just not good with money?  Mom and dad’s hard earned assets may be taken away forever. 

Giving assets away can be tricky.  If after giving assets away mom or dad needs care prematurely i.e., within 5 years of the gift, a penalty period or period of ineligibility for Medicaid will result.  This period will not begin to run until mom or dad applies for Medicaid. 

You don’t indicate your parents age or health status, but purchasing a long-term care insurance policy to cover a period of 5 years could be a good investment.  There are policies available that include a return of premium feature, meaning that if the policy is not used the premiums are given back.  There are also life insurance policies that have long-term care riders.  With this type of policy if long-term care is needed the policy is tapped and if not it continues as a regular life policy paying a benefit on death. 

It will be worthwhile to consult with an elder care attorney to learn about all the options for long-term care planning available.  The guidance of a professional will save the family time, money and stress in the long run.

To locate experts in your state who can help you with these elder care matters, go to: www.ElderCareMatters.com - America's online source for elder care experts plus information & answers about a wide range of elder care matters.

Heather R. Chubb, Life Transitions Lawyer
The Chubb Law Firm
Gold River, California  95670
916-635-6800
Member of the national ElderCare Matters Alliance, California chapter

Answer:  The VA’s Aid & Attendance (A&A) benefit is available to war-time veterans who need assistance with activities of daily living, such as bathing, feeding, dressing, or protection from the hazards of the daily environment.  The assistance can be provided in the veteran’s own home, in a board and care home (also referred to as a group home or RCFE (Retirement Care Facility for the Elderly)) or in an assisted living facility.  This pension provides a married veteran $1,949/month, single veteran $1,644/month, or veteran’s surviving spouse $1,056/month tax-free income to help pay for care. 

In addition to being a wartime veteran and needing assistance there are also income and asset limitations to qualifying for the program. 

The claims process can be very frustrating if you have not been trained and do not understand the law.  You may be denied outright or your claim may take many more months to complete because of information requests and exchanges between you and the VA.  I strongly recommend that you use the services of a VA accredited individual or organization, which includes state and county veterans service agencies. 

The VA recognizes three groups to assist veterans in the preparation, presentation and filing of claims.  VA accredited attorneys, accredited Veterans Service Officers (VSO) and claims agents.  You can find a list of these groups by city and state at the VA’s Office of General Counsel’s Accreditation website.  It is against the law to charge for services to help prepare and file the claim. 

Whomever you seek out for advice should understand not only the VA laws and rules, but also those for Medicaid (Medi-Cal in CA) and tax laws.  These programs are very different and what may be acceptable under one program may have adverse consequences under the other programs.  The right professional will help you develop the most appropriate planning to meet your specific needs.

To locate experts in your state who can help you with these elder care matters, go to: www.ElderCareMatters.com - America's online source for elder care experts plus information & answers about a wide range of elder care matters.

Heather R. Chubb, Life Transitions Lawyer
The Chubb Law Firm
Gold River, California  95670
916-635-6800
Member of the national ElderCare Matters Alliance, California chapter

Answer:  First, let me say that it is nice to see a family discussing planning in advance of the need for long-term skilled nursing care.  By planning now a greater variety of options are available to meet your goals.  I am going to presume that you are concerned about preserving assets if your parents need to rely on Medicaid to pay the nursing home bills.  The Medicaid rules vary somewhat for each state, but as a general principal to get the most preservation you will need to plan at least 5 years in advance of the need for care. 

Any planning that is done must consider not only the rules for Medicaid eligibility but also the recovery (or payback) rules.  For example, the home is an exempt asset for eligibility purposes and it could remain in your parents’ name, but upon the death of the remaining spouse the state will want to be paid back for the care it provided to the ill spouse, which could result in the forced sale of the home. 

Asset preservation will fall into 2 categories – converting assets from non-exempt to exempt and getting assets out of your parents’ names, i.e., giving them away.  Some examples of conversions include using funds to make repairs or improvements to the home, buying mom and dad a new car, purchasing a Medicaid compliant annuity or entering into a personal care contract. 

Because giving assets away means a loss of control over the asset, your parents need to be part of the plan.  If they are “young” healthy elderly they may not be ready to give up control.  Flexibility in the plan will be important as will giving assets away in the right way.  

Oftentimes assets are given directly to a child with the thought that the child will use the funds for the parents later when the need arises.  But what if the child divorces, is sued or is just not good with money?  Mom and dad’s hard earned assets may be taken away forever.  Included in the definition of “giving away” is adding a child’s name to the house deed or bank accounts.  Therefore giving assets away in the right way is critical.  Special irrevocable trusts work nicely to provide the protections your parents need.  

A final word of warning when giving assets away, if mom or dad needs care prematurely i.e., within 5 years of the gift, a penalty period or period of ineligibility for Medicaid will result.  This period will not begin to run until mom or dad applies for Medicaid. 

When it comes to Medicaid and asset protection planning timing and knowledge are everything and it is not a do-it-yourself project.  An elder law attorney in your state will be able to guide and educate your parents about the Medicaid rules applicable in your state and which preservation techniques will suit them best.

To locate experts in your state who can help you with these elder care matters, go to: www.ElderCareMatters.com - America's online source for elder care experts plus information & answers about a wide range of elder care matters.

Heather R. Chubb, Life Transitions Lawyer
The Chubb Law Firm
Gold River, California  95670
916-635-6800
Member of the national ElderCare Matters Alliance, California chapter

Answer:  The truth is that, the Medicaid department is not authorized to send anyone over to actually take possession of the house.  However, after the death of the second parent the state wants to be paid back and may seek “recovery” from assets owned by the survivor at the time of the survivor’s death.  However, the state may only be paid back up to the amount that they actually paid out, but this still may result in the forced sale of your parents’ home. 

However, in your case there is an exception to the recovery rules because your parents have a disabled child.  When there is a surviving disabled child a recovery claim is prohibited by federal and state laws.  The surviving disabled child will need to provide documentation of disability or blindness, such as a Social Security or SSI award letter and a birth certificate showing they are the child of the deceased. If the surviving child does not have documentation of disability from the Social Security Administration, he/she can still file for a disability determination with the Medicaid department.  It is important to note that the surviving child does not have to live in the home (or even in the State, for that matter) in order for recovery to be barred. 

Signing over the home now may sound like a good idea, but it carries some big risks.  First, when your parents sign over the house they lose control and that can mean that the kids can kick them out at anytime.  In addition, if a child’s marriage ends in divorce or the child is sued the house can be taken away.  Finally, if your parents sign over the house and then need Medicaid within 5 years of the transfer a penalty and ineligibility for Medicaid for a period of time will result with the ineligibility period starting at the time they apply for Medicaid. 

As you can see Medicaid planning is filled with traps for the unwary.  I encourage you to seek the advice of a qualified elder law attorney in your state who will help guide you through the process.

To locate experts in your state who can help you with these elder care matters, go to: www.ElderCareMatters.com - America's online source for elder care experts plus information & answers about a wide range of elder care matters.

Heather R. Chubb, Life Transitions Lawyer
The Chubb Law Firm
Gold River, California  95670
916-635-6800
Member of the national ElderCare Matters Alliance, California chapter