"My 80 yr old mother has dementia, does not want to eat or bathe, and has stopped taking her medications. I'm scared for the safety of my father, due to mom's violent outbursts/actions. Can my father and/or I (daughter) place Mom in a facility against her will for her well being and safety?"

Answer:  It  depends, if there is a medical reason, then yes, if just for safety, then only  if you  can show she is a danger to herself or others. 

I would recommend that you find an attorney in your jurisdiction by going to the following ElderCare Matters resource:  www.ElderCareMatters.com/statechapters.htm

Sonya Mittelman, Attorney at Law
Bronx, NY  10461
718-863-4647
Member of the national ElderCare Matters Alliance, New York chapter


“My older sister died one year ago and her estate is currently being probated in our local court. I just discovered this fact from my younger brother who shared with me the court papers and to my surprise I was not included as an heir nor had I ever been served notice by the estate administrator (who is my older brother). How can I stop this process until I can get listed as an heir?”

Answer:  You should retain an attorney in your  state as this may vary, but generally, you would need to file objections to the will.  If  the court date has passed, write to  the clerk and inquire as to what  you need to do.

To locate attorneys in your state who can help you with this matter, I would recommend that you search the ElderCare Matters listing of experts at www.ElderCareMatters.com/statechapters.htm.

Sonya Mittelman, Attorney at Law
Bronx, NY  10461
718-863-4647
Member of the national ElderCare Matters Alliance, New York chapter


This week's Featured Elder Care Expert is Sonya Mittelman, Attorney at Law

Ms. Mittelman will answer a different question each day this week about an Elder Law or Estate Planning matter, and a selected question along with Ms. Mittelman’s answer will be posted on the Featured Elder Care Question of the Day section of www.ElderCareMatters.com.

Phillip G. Sanders, MBA, MHSA, CPA
Founder & CEO
ElderCare Matters
www.ElderCareMatters.com


“What is a Power of Attorney (POA) and what types of POAs are there?“

Answer:  A Power of Attorney is a document that allows another person or people to manage your assets for you, upon your incapacity.

In your Power of Attorney, you are known as the Principal, while the person or people you choose to manage your assets are known as Agent(s).

A Durable Power of Attorney is effective from the date you sign it, through your incapacity, until you choose to revoke it.

A Springing Power of Attorney is only effective upon your incapacity.

Sonya Mittelman, Attorney at Law
Bronx, NY  10461
718-863-4647
Member of the national ElderCare Matters Alliance, New York chapter


“My 74 year father, who lives in Florida, has been diagnosed with the early stages of Alzheimer’s. My father’s doctor has notified us (his 4 children who live in New York, Florida, Georgia and Missouri) that he cannot live on his own, and that he must have elder care assistance. My father has been legally separated from his spouse for 2 years and currently does not maintain a relationship with his spouse. My dad refuses to agree to assisted living or any type of facility, he most often refuses his medical care and is demanding to live on his own. We have been notified due to his marital status that we may be unable to obtain power of attorney or guardianship for him. Because my dad is refusing his medical care we find it necessary to make a decision about his health and well being. We seek assistance in determining what legal options we may have to perhaps move him closer to one of us. My dad currently lives in Florida, however his children reside in New York, Florida, Georgia, and Missouri.“

Answer:  You should be able to obtain guardianship regardless of his marital status. Based on the situation you describe, that is the route I would recommend. You would need to petition for guardianship in Florida, where your father currently resides. Then, when successful, the guardian would seek court approval to move him to another state.

Victoria L. Collier, Attorney at Law
Collier & St. Clair, LLP
Decatur, Georgia  30030
404-370-0696
Member of the national ElderCare Matters Alliance, Georgia chapter


"Is it good practice to appoint a representative organization and/or individual (VA Forms 21-22 or 21-22a) to represent the veteran on the VA application? If so, which do you find works best?"

Answer:  It depends on the family.  If I am helping the family, I am appointed using the 21-22a.  If not, I encourage them to appoint a veteran service office as the agent under the 21-22.

Victoria L. Collier, Attorney at Law
Collier & St. Clair, LLP
Decatur, Georgia  30030
404-370-0696
Member of the national ElderCare Matters Alliance, Georgia chapter


"Will the VA accept a personal services contract?"

Answer:  The VA will accept a personal services contract and the fees paid under the contract are permissible, deductible medical expenses to reduce income for VA purposes (as long as the claimant has been rated in need of aid and attendance).  I don’t do lump sum personal services contracts for VA purposes, but imagine it could be done to reduce the assets.  Must be very careful; however, as to how it is claimed as medical deductions vs. annual income when doing a lump sum arrangement vs. monthly payments under the contract.

Victoria L. Collier, Attorney at Law
Collier & St. Clair, LLP
Decatur, Georgia  30030
404-370-0696
Member of the national ElderCare Matters Alliance, Georgia chapter


"My step-father, who served in the Korean War, is in the process of applying for VA Aid & Attendance benefits. The instructions discuss reporting gifts. How far back does one need to report gifts, and what gifts need to be reported, and where on the application does one report such gifts?"

Answer:  These are all very good questions and there are no specific laws or guidelines from which to follow (the VA is purportedly revising the instructions to be clearer).  

I would not report regular gifts like holidays, etc. or to charity or gifts made a long time ago that when made were not in consideration of qualifying for VA benefits.  However, if transfers of assets were made in order to qualify for VA benefits (i.e. a bank account was transferred from dad to child), then I would report that on the application form (Part XIII Remarks, block 45).  I would put the amount, the date, and to whom the gift was made, and if true, a statement that the person who received the gift does not live in the same household as the veteran. 

I would not report a transfer of any “exempt” assets, such as the house, cars, personal property.

Victoria L. Collier, Attorney at Law
Collier & St. Clair, LLP
Decatur, Georgia  30030
404-370-0696
Member of the national ElderCare Matters Alliance, Georgia chapter


"My 81 year-old parents have told me and my 3 adult siblings they would like all 4 of us to be named on their Power of Attorney forms. We are geographically spread out from Mich. to Fla. I obtained forms for doing this from the nursing home dad is currently staying in. I noticed on the blank Health Care POA form there was space to name a family member as primary, but on the financial POA form there was only space for one family member to be named. Is this standard procedure? My parents have requested we all be listed. Also, if we complete these and have the Social Worker at the nursing home get them notarized, is that adequate or would we be better off going through a lawyer?”

Answer:  It is generally recommended that agents under a power of attorney be listed as primary, secondary, tertiary, etc. (only one person at a time, with backups) instead of multiple co-agents.  It is highly recommended that you consult with an Elder Care Attorney who specializes in asset protection planning to draft or review any power of attorney. There is very specific language that should be in a power of attorney when long term care issues arise.  Standard “off the shelf” forms do not take into account your particular situation.

You can find helpful resources and lists of professionals in your area at http://www.eldercarematters.com/statechapters.htm.

Victoria L. Collier, Attorney at Law
Collier & St. Clair, LLP
Decatur, Georgia  30030
404-370-0696
Member of the national ElderCare Matters Alliance, Georgia chapter


"What is the best way to notify the VA of a change in a veteran’s Medicaid eligibility status?”

Answer:  I have found that the best way to notify the VA of a change in the veteran’s eligibility status is on VA Form 21-0779, which is completed by the Nursing Home.  Also, this should be reported on the annual Eligiblity Verification Report (EVR) due each year on March 1st.  This should be sent to the Pension Management Center in the region where the claim was adjudicated by either fax (keeping a copy of the fax transmittal) and/or through the mail return/receipt/requested.

Victoria L. Collier, Attorney at Law
Collier & St. Clair, LLP
Decatur, Georgia  30030
404-370-0696
Member of the national ElderCare Matters Alliance, Georgia chapter


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