May Someone With Dementia Sign a Will?

Answer:   Millions of people are affected by dementia, and unfortunately many of them do not have all their estate planning affairs in order before the symptoms start. If you or a loved one has dementia, it may not be too late to sign a last will and testament or other documents, but certain criteria must be met to ensure that the signer is mentally competent.

Many family members or friends discourage those with dementia from seeking legal advice because they feel that the person is not capable of doing planning or executing documents. In many instances that is not the case and the individual does, in fact, have enough mental capacity to sign a will. However, in some circumstances an individual is clearly incapacitated and a guardianship proceeding may be required in order to obtain the appointment of a guardian to manage the individual’s affairs. If a person is deemed to be incapacitated he/she clearly cannot execute a will.

In order for a will to be valid, the person signing must have “testamentary capacity,” which means he or she must understand the implications of what is being signed. Simply because you have a form of mental illness or disease does not mean that you automatically lack the required mental capacity. As long as you have periods of lucidity, you may still be competent to sign a will.

Generally, you are considered mentally competent to sign a will if the following criteria are met:

  • You understand the nature and extent of your property, which means you know  what you own and how much of it.
  • You  remember and understand who your relatives and descendants are and are able to articulate who should inherit your property.
  • You understand what a will is and how it disposes of property.
  • You understand how all these things relate to each other and come together to form a plan.

Family members may contest the will if they are unhappy with the distributions and believe you lacked mental capacity to sign it. In addition, a will can be contested if “undue influence” was exerted on the signer of the will. If a will is found to be invalid, a prior will may be reinstated or the estate may pass through the state’s intestacy laws (as if no will existed). To prevent a will contest, your attorney should help make it as clear as possible that the person signing the will is competent. The attorney may have a series of questions to ask you to assess your competency. In addition, the attorney can have the will signing videotaped or arrange for witnesses to speak to your competency. In any event, New York law requires that at least 2 individuals witness the signing of a Last Will & Testament.

If you need help with this or other elder care matters, you can locate an Elder Law Attorney near you on ElderCareMatters.comAmerica’s National Directory of Elder Care / Senior Care Resources.

An ElderCare Matters Partner
Ronald Fatoullah, Esq., CELA
Ronald Fatoullah & Associates
Great Neck, New York
An ElderCare Matters Partner

Today’s Elder Care Question on is about the effect of gifting on Medicaid Eligibility

Question:  Will the fact that Dad has given gifts to his children over his lifetime preclude him from receiving Medicaid benefits?

Answer:  The only gifts that matter to Medicaid (currently) are gifts made within 5 years of filing for Medicaid benefits.  There is talk that this will be extended to a 10 year look-back period but this is not the current law.  Small gifts or gifts that are not made in order to qualify for Medicaid are not usually considered a problem during the 5 year look-back period.  A watch or similar item for a birthday or graduation would not present a problem, but an automobile would.

If you need help with this or other elder care matters, you can locate an Elder Law Attorney near you on ElderCareMatters.comAmerica’s National Directory of Elder Care / Senior Care Resources.

An ElderCare Matters Partner
Ivan Michael Tucker, Esq.
Law Office of I. Michael Tucker, PLC
Altamonte Springs, Florida
An ElderCare Matters Partner

Today’s Elder Care Question on is about Probate

Question:  What is Probate?

Answer:  Probate is the court proceeding to transfer a dead person’s assets to the people who are supposed to get them. Simple in concept, but humbug in practice. Probate can easily take a year or more to complete, and the attorneys’ fees and other costs associated with probate could easily eat up 5% or more of a decedent’s gross estate. (“Decedent” is lawyer talk for a “dead person.”) If a decedent owned assets located in more than one state or country, it may be necessary to have a probate in each jurisdiction where the assets are located. If one probate is bad, you can bet that more than one probate is worse. In addition to the money and time that probate can consume, another reason people try to avoid probate is that the court’s probate files are public records. Nosy people can go through the court’s probate files and gather all kinds of information that may be profitable to them-and detrimental to decedents’ families.

If you need help with this or with other kinds of Elder Care Matters, go to – America’s National Directory of Elder Care / Senior Care Professionals.


An ElderCare Matters Partner
Scott A. Makuakane, Esq., CFP
Est8Planning Counsel LLLC
Honolulu, Hawaii
An ElderCare Matters Partner


Today’s Elder Care Question on is about the Medicaid Spend Down

Question:  My mother (who is 83 years old, blind, has lived in a nursing home for 4 months but owns a home, and cannot walk) has a $14k spend down for Medicaid.  What exactly can this money be spent on?

Answer:  As an Elder Law Attorney the first question I would have for you is who told you that your mother had a spend down amount of $14,000? Do you mean pre-qualification spend down of your mother’s resources or do you mean post Medicaid approval where the State has determined a Spend Down Amount. The distinction is important since in Illinois pre-qualification spend down is not as restricted as post approval spend down which is generally limited to medical expenditures.

You really need to see an Elder Law Attorney to discuss your mother’s overall situation. Your question indicates that your mother still owns her home. Typically if someone enters a nursing home without an intent to return home, then the home is no longer an exempt asset. In Illinois if certain steps are not taken in regard to the home, it may result in your Mother’s application being denied. In addition, there are several exceptions to rules regarding homes which you may or may not qualify for which can allow the home to be preserved. In addition, you indicated that your Mother has been in the nursing home for 4 months, but have not indicated how the nursing home bill for that period was being paid. Even if your Mother received the full 100 days of Medicare rehabilitative coverage in the nursing home, that still leaves a period of time that must be paid for privately or by Medicaid. While Medicaid will pay for nursing home care for up to 3 months prior to the date of the application, in Illinois the applicant must meet all the Medicaid qualifications on the first day of each of those three months for Medicaid to pay them.

Since your Mother has $14,000 she would not qualify for the pre-application Medicaid coverage as it is above the asset limit. So, whether you have already filed the Medicaid application or not, you must consider what amount your Mother will have to pay to the nursing home which Medicaid will not cover. You need to address that issue prior to making any decision as to how to spend down the balance of the money. These are all complicated questions and issues, and you cannot expect to get correct information from anyone other than an Elder Law Attorney.

I would highly recommend that you pay a portion of that money to an experienced Elder Law Attorney to do an overall evaluation of your Mother’s qualifications, whether her home can be preserved, whether there are any other planning strategies she might be able to take advantage and to make sure that the allocation of her monies is done correctly so that it does not result in either a penalty period or a denial of benefits. Good Luck.

If you need additional information about this or other Elder Care Matters, go to – America’s National Directory of Elder Care / Senior Care Professionals.

James C. Siebert, Esq., An ElderCare Matters Partner
James C. Siebert, Esq.
The Law Office of James C. Siebert & Associates
An ElderCare Matters Partner

Today’s Elder Care Question on is: “What is the purpose of a Special Needs Trust?”

Question: What is the purpose of a Special Needs Trust?

Answer: While you can certainly bequest money and assets to those with special needs, such a bequest may prevent them from qualifying for essential benefits under the Supplemental Security Income (SSI) and Medicaid programs. However, public monetary benefits provide only for the bare necessities such as food, housing and clothing. As you can imagine, these limited benefits will not provide your loved ones with the resources that would allow them to enjoy a richer quality of life. Fortunately, the government has established rules allowing assets to be held in trust, called a Special Needs or Supplemental Needs Trust for the benefit of a recipient of SSI and Medicaid, as long as certain requirements are met.

To find additional information about a wide range of Elder Care Matters, go to: – America’s National Directory of Elder Care / Senior Care Professionals.

James J. Ruggiero, Jr., Esq., An ElderCare Matters Partner
James J. Ruggiero, Jr., Esq.
Ruggiero Law Offices, LLC
An ElderCare Matters Partner

Today’s Question of the Day on is “What long term care benefits does the VA pay for?”

Question:  What long term care benefits does the VA pay for?

Answer:  The VA has a benefit called the Veteran’s Improved Pension, commonly known as the VA Aid & Attendance Benefit.  In order to qualify for the Veteran’s Pension Benefit, the veteran must not have been dishonorably discharged, must have served at least 90 days active duty with at least one day served during a declared state of war, and must be either disabled or over age 65.  Widows of veterans may also qualify.  Applicants must meet certain income and asset limitations to qualify, and they must need assistance with Activities of Daily Living (ADLs) such as eating, bathing, and dressing.  This benefit can help married veterans may qualify for up to $24,239 of tax free assistance annually.  This money can be used to cover the costs of care in the home, in an assisted living community, or in a nursing home. 

If you think that you or a loved one might qualify for benefits, the next step would be to enlist the service and advice of an experienced Veterans Administration Accredited attorney who understands the Pension Benefit, as well as Medicaid planning rules and other estate planning issues.  Advisors such as a VA accredited attorney and a knowledgeable, experienced financial planner can help veteran households rearrange assets, make legally effective transfers, and assist with other estate planning needs in order to qualify a veteran household for a pension benefit.  It is extremely important that you involve an attorney who has experience with Medicaid planning if you plan on moving or otherwise rearranging assets in order to qualify for the Veteran’s Pension Benefit.  There is a high probability that the veteran, the spouse, or the surviving spouse of a veteran household may need nursing home care in the future.  Such care is very expensive and the individual’s income plus the veterans benefit rarely pay for the cost of a nursing home.  This means the veteran may have to rely on Medicaid to cover the deficit.  Assets reallocated to qualify for VA benefits could create penalties for Medicaid eligibility, underscoring the importance of planning for the possibility of having to apply for Medicaid in the future. 

In addition to the Aid and Attendance Benefit, the VA in its various facilities around the country will provide nursing home care the qualifying veterans.  However, the number of beds are very limited.  The VA provides service-connected disability ratings that range from 10% to 100%. Those veterans who are 100% disabled because of the service-connected injury or illness will receive priority for admission with priority moving down the rating scale.  In addition to the beds available in VA operated facilities in some states the VA has contracted with other nursing homes to make beds available to qualifying veterans.

To find Elder Care Professionals near you who can help you with these elder care matters, go to: – America’s National Directory of Elder Care / Senior Care Professionals and Resources for Families.

Henry C. Weatherby, Esq., CLU, ChFC, CEBS
Weatherby & Associates, PC
Connecticut State Coordinator –



Today’s Q&A on is from a family who is “Scared about getting old!”

Question:  We are scared about getting Old!  How would we go about planning for the cost of our future elder care needs?

Answer:  I advocate the compilation of a Life Transition Plan (with at least annual updates). This plan documents not only the usual things, like income, expenses, assets and liabilities but also contemplates various scenarios for lifestyle changes (e.g. what will happen if I can’t take care of myself and my spouse can’t/won’t care for me or I don’t have a spouse?) and creates long range budgets around these scenarios. This will then show the gap between possible future needs and likely available resources. At that point, depending upon the particular circumstances, it might be prudent to explore purchasing long term care insurance and/or consulting with and elder law attorney regarding structuring to provide for the availability of public benefits (Medicaid, VA, etc.) should the need arise. This is a highly individualized process with many nuances.

To find elder care professionals near you who can help you with these types of issues, go to – America’s National Directory of Elder Care / Senior Care Resources for Families.

Hope this helps.

Sheri Samotin
LifeBridge Solutions, LLC
Playa Vista, California  90094
An ElderCare Matters Partner

Today’s Q&A on is about Paying Family Caregivers

Question:  How much can an elder pay their family members to provide them with long term care?  I am assuming this is permitted.  I would prefer to pay my family than to pay a home care company for this type of personal care.

Answer: What you are referring to is what is called a “Personal Services Contract” that changes what would normally be treated as a “gift” into a bargained-for exchange of your property for the return of services by your children, grandchildren, brothers, sisters, and others.  Most of the services include many things that those caregivers are already doing for you.  They include the following: cooking, cleaning, laundry and taking you to the doctor, taking you for medical tests, health monitoring, meeting with doctors about the medical care that will be needed, etc.  Taking the ill parent on trips, providing entertainment, visiting with you.  They may also include bathing you and dressing you and assisting in your toiletries.  If in the hospital, then visiting with you in the hospital and making arrangements for others to visit you.  Answering letters that you receive, paying bills (under the authority of a current durable power of attorney) and writing letters for you.  These are the normal activities that are included in the “Personal Services Contract”, but there may be additional items based upon your individual needs.

The next thing is to determine your life expectancy based upon the SSI Life Expectancy Tables.  This will indicate statistically how many years and months someone of your current age is expected to live (you may be live that long or you may live even longer).  Next, you need to determine how many hours will be necessary to carry out the various duties under the contract on a weekly basis.  Normally, we would expect 4 or 5 hours per day seven days a week.  Of course, this may vary depending on the circumstances.  If it varies too much, then Medicaid may question the hours so you had better keep some kind of journal or calendar where you routinely write down the expended each day and what activities are undertaken on that day.

Lastly, you need to have an idea of what homecare workers charge in your area.  The best way to do this is to discuss it with an experienced elder law attorney in your area, but, if you cannot find one then you will have to make some calls to find out this information.  It is much easier to go to a qualified elder law attorney as he will already have this information and it would, of course, have the attorney draw up the agreement to meet with your state’s requirements.

The amount of money that can be protected is figured out this way. 1) The number of hours each week, 2) times the average hourly rate, 3) times 4.3 weeks to give you the monthly total for services rendered, 4) times 12 months to give you the annual total for services rendered, 5) times the life expectancy of the elderly person.  In most instances, I have found that there is usually not enough money to cover the full funding of the contract.  This is a good sign as it will show that the elderly person is receiving more services than he or she is actually paying for.  In other instances, the hours per week might have to be increased or the average hourly rate must be increased or both.

As always, you can use the ElderCare Matters website – –  to find a list of attorneys and other types of caregivers in your area.

Ivan Michael Tucker, Esq.
Altamonte Springs, Florida
“Partner” Member of the national ElderCare Matters Alliance

Illinois Elder Law Attorney Answers Today’s Elder Care Question on

I desperately need some advice. My wife is 79 years old and has progressively gotten so debilitative that I (82 years old) can no longer care for her at home. We have lived in our paid off home for more than 30 years and we receive every month about $2,800 in total benefits, including our Social Security checks. Other than the value of our home (which is about $125,000), we have a modest amount of savings and no other assets to speak of. How can I afford to place my wife in a nursing facility, which I understand may cost $5,000 – $6,000 per month? What are my options? Please help!

Answer:  I believe you need to consult with an Elder Law Attorney immediately. An experienced Elder law Attorney can advise you as to the Medicaid requirements in your State.  Medicaid is a combined federal and State program, which among other benefits, pays for the nursing home costs of those we meet the program’s requirements, which include limits as to the amount of assets the applicant can possess. The program also has provisions for circumstances such as yours, which allows the community spouse to keep a certain amount of income and assets in order to prevent spousal impoverishment. The actual financial amounts vary from State to State, so it is essential that you speak to an Elder Law Attorney in your State to determine what limitations would apply to you. I can tell you that based upon the limited facts that you provided – in Illinois, you would be entitled to keep your home, up to $109,560.00 in assets and up to $ 2,739.00 of your joint income.  Depending upon your actual figures an Elder Law Attorney may also be able to assist you in preserving other assets or avoid certain debts.  It is certainly worth an initial consultation. An experienced Elder Law Attorney can also act as a vital source of local resources, which along with those listed on, could provide you with the assistance necessary to make this difficult transition a little easier.

James C. Siebert, Esq.
Arlington Heights, Illinois
“Partner” Member of the national ElderCare Matters Alliance

Elder Law Attorney Answers Family’s Question About ElderCare Options

Question:  I desperately need some advice. My wife is 79 years old and has progressively gotten so debilitative that I (82 years old) can no longer care for her at home. We have lived in our paid off home for more than 30 years and we receive every month about $2,800 in total benefits, including our Social Security checks. Other than the value of our home (which is about $125,000), we have a modest amount of savings and no other assets to speak of. How can I afford to place my wife in a nursing facility, which I understand may cost $5,000 – $6,000 per month? What are my options? Please help!

Answer:  Surprisingly, you may be able to qualify your spouse for Medicaid for nursing home benefits without doing anything further.  The rules vary widely state to state, so it is essential that you talk to an elder law attorney who has extensive experience in Medicaid planning (called Medi-Cal in California) in your state before you do anything.  There are many rules.  In California, you can own a home of any value and still qualify a spouse for Medi-Cal.  Also, in California, the retirement accounts will not keep you from getting Medi-Cal.  In fact, in California, you can own up to $117,920 in countable assets and still qualify the ill spouse for Medi-Cal for a skilled nursing facility.  Countable assets exclude the primary home of any value, one car, and the retirement accounts.  Further, in many states, a court order can increase the amount of assets that you can keep and still qualify the ill spouse for nursing home Medicaid, and a court order can increase the amount of income that you can keep.   There are also legal means to protect a home from an estate recovery claim after death if the legal steps are properly taken before the death of the nursing home spouse.  Lastly, if you or your spouse served in the US military for at least 90 consecutive days, at least one of which was during a war time (combat zone or injury are NOT required), then you may qualify for up to $2,054 per month in a tax-free pension from the VA (known as Aid and Attendance Pension, or Non-Service Connected Pension) depending on your assets and your income and how much you are paying out of pocket for elder care or medical care.  See an experienced elder law attorney in your state for advice on these two programs:  Medicaid for nursing homes, and VA Aid and Attendance.

To find an Elder Law Attorney near you who can help you with your elder care matters, go to: – America’s National Directory of Elder Care / Senior Care Resources for Families.

Dallas Leigh Atkins, Esq.
Santa Barbara, California
“Partner” Member of the national ElderCare Matters Alliance

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