Question of the Day on ElderCareMatters.com: "Should I transfer my home to my kids to protect it if I should need nursing home care?"

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


Question of the Day on ElderCareMatters.com: "I feel my mother has been taken advantage of financially, and am concerned it will happen again. As her daughter, what can I legally do?"

Question:  “I have a potential concern for my recently widowed 84 year old mother, a Massachusetts resident who requires home care.  Mom is independent, still has all her intellectual faculties, and has a great memory, but has some physical limitations, so she requires home care assistance.  I visit Mom every few weeks to help her pay her bills.

Mom recently disclosed to me, that she recently gave money to one of her home care aids.  My mother says she gave her the money, in cash, and told her it was a gift. I know that my mother would never complain about this woman as she would not want to lose her care.

I feel my mother has been taken advantage of financially, and am concerned it will happen again.  As her daughter, what can I legally do?”

Answer:  You’re in a difficult situation and there’s no easy answer. It’s good that your mother is mentally sharp but she may well be feeling vulnerable because of her physical limitations. I have seen quite a few cases where normally financially astute elders make unwise decisions because of these changes.

Since you are  with your mother regularly and help her pay her bills, you should be able to keep on eye on things and be alerted if she starts withdrawing more cash then usual from the bank. If you are named as the agent under your mother’s power of attorney you many also speak with the people at her bank to be on the alert for unusual activity.

Dagmar M. Pollex, Esq.
Law Offices of Dagmar M. Pollex, P.C.
Braintree, Massachusetts  02184
781-535-6490
www.PollexEstatePlanning.com
Member of the national ElderCare Matters Alliance, Massachusetts chapter


Question of the Day on ElderCareMatters.com: "My elderly in-laws have a 1st and 2nd mortgage on their home. Would they still be eligible for a reverse mortgage?"

Answer:  With Reverse Mortgages, it doesn’t matter how many mortgages have previously been placed on the property.  The couple must be at least 62 years old.  Actually, the amount of money you might get extended as a reverse mortgage is based upon the age of the couple and the value of the home.  The older you are, the more money you can qualify for.  This is because you can continue to live in the home for the rest of your life and never have to make a mortgage payment.  So, if the elderly couple in the question are more advanced in age, it greatens the chance that the amount they qualify for can pay off both of the two prior mortgages.  It needs to because a reverse mortgage won’t be extended unless it will occupy a “first” position. 

One of the best things about reverse mortgages is that they are non-recourse. The concept began in 1988 under Ronald Reagan, an oldster himself.

Russell Hodges, Esq., Managing Partner
Hodges Law Firm, LLC
Atlanta, Georgia  30040
404-824-4225 or 770-888-0015
www.RHodgesLaw.com
Member of the national ElderCare Matters Alliance, Georgia chapter

 


Question of the Day on ElderCareMatters.com: “My mother just moved into an assisted living community in Illinois. We were told that once all her assets have been depleted that they will start taking her social security. They said that she would never be kicked out and that Medicaid will kick in. How do we know if Medicaid will approve her? And what if they don't? They are really pushing for us to sell her house ASAP! I'm just so scared that once they've sucked up all her assets that somehow she might have to leave. Is there a way Medicaid will pay without selling her house?”

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


Question of the Day on ElderCareMatters.com: “We are applying for Georgia Medicaid benefits for my mother who is 81 years old and has Alzheimer’s disease. Mom has very few assets but does have an IRA account that the Medicaid case worker says has to be annuitized so that monthly payments are received. Why is this necessary, who receives the monthly payments, and upon Mom’s death, will we the family – rather than the state – receive the remainder of Mom’s IRA?”

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


Question of the Day on ElderCareMatters.com: What are the most common signs of nursing home abuse or neglect?

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


Question of the Day on ElderCareMatters.com: “For some reason, my aging parents are stonewalled about signing a healthcare power of attorney. They seem to think that one of them will always be available to take care of the other. As they age, it is becoming more and more apparent that this issue needs to be discussed, but they refuse any attempt on any family member's part to do this. I believe they view it as a means for someone to take control, thus losing their independence. What would you suggest?”

Answer:  In Massachusetts and probably other states, if  married couples do not have  a health care proxy (HCP) in place and one of them needs hospital care the other will have no rights with respect to his or her spouse’s health care needs.
 
In circumstances where the hospitalized spouse loses competency to decide an emergency, guardianship will be required. The cost will then become large because court action will be required. If these people are hesitant they can name each other as health care agent followed by a trusted child as an alternate. Also they should think about a durable financial power of attorney  because a health care proxy only addresses health issues, and if one of them becomes incompetent the other can take over with the financials. Without that document financial institutions would require a Conservatorship– again an expensive proposition. Every person needs to have these 2 documents in place. The fiscal and emotional costs to the family would be far greater than the actual legal costs to retain an attorney to draft them.

Susana Lannik, Attorney at Law
Law Office of Susana Lannik, LLC
Newton, Massachusetts  02458
617-658-2980
www.LannikLaw.com
Member of the national ElderCare Matters Alliance, Massachusetts chapter


Question of the Day on ElderCareMatters.com: "Would payable on death accounts need to be included in a revocable living trust?"

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.


Question of the Day on ElderCareMatters.com: "Do I need a Trust or a Will?"

Michael A. Jensen, Attorney at Law
P.O. Box 571708
Salt Lake City, Utah  84107
801-519-9040
www.UtahAttorney.com
Member of the national ElderCare Matters Alliance, Utah chapter
 
Answer:  Everyone should have a will, but not everyone needs a trust.  Even if you have a trust, you should have a will in order to transfer assets from your personal estate upon death to your trust.  This happens when an asset is purposely or unintentionally left out of the trust and is discovered after the death of a grantor of the trust.  When that happens, the will needs to be probated so that the asset can be transferred to the trust.  When a person has a trust, the associated will is often referred to as a “pour over will” since the will is intended to pour any assets outside of the trust into the trust.


Question of the Day on ElderCareMatters.com: "Would you please provide us with information about the NEW service that ElderCareMatters.com and its 1,686 elder care experts will be starting in October to provide families across America with more information and more answers about a wide range of elder care matters?"

Answer:  Starting in October, ElderCareMatters.com will feature each week 1 of the 81 different elder care services that are provided by the members of the national ElderCare Matters Alliance, experts who help families across America plan for and deal with their elder care matters. 

For example, during week 1 we will showcase members of the national ElderCare Matter Alliance who provide “Aging in Place Services”

During this week our “Premium” and “Lifetime” members who are experts in helping families “Age in Place” will provide us with:

1) Actual Q&As taken from their practices,
2) Original articles written by them about this important elder care service,
3) Answers to your questions about Aging in Place.

So if you would like to ask one of our elder care experts a question about “Aging in Place”,  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 Elder Care Question of the Day.

Thank you for your support of ElderCareMatters.com – America’s #1 online source for Elder Care Experts, Information & Answers About a Wide Range of Elder Care Matters.

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


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