Elder Law

There is no personal financial responsibility for the guardian unless he/she is guilty of misconduct. The guardian uses the ward's funds to pay for the ward's expenses. I hope this helps. 

The clause you are referring to typically pertains to financial assets. There should be no problem moving dad's personal effects into your house. 

Unless the POA is being used to transfer real estate it does not have to be recorded or registered anywhere. To find out if your sister has POA, ask your mother. If she is unable or willing to tell you, then ask your sister. If she won't tell you, then you could commence a guardianship if mom's affairs are not being handled properly. In this proceeding you could seek to revoke the POA. The nursing home admission agreement must be reviewed to determine who has the power to sign mom out. Typically for health care decisions you would need an advance medical directive. I hope this helps. 

Chris, the Medicaid rules are very state specific. I suggest you speak with a certified elder law attorney in Ohio where your mom resides. Generally speaking, if someone is in a nursing home and doesn't intend to return home, then their former residence is considered an available resource with respect to Medicaid eligibility. 

If parents have legal capacity and would grant POA and health care directives that would be better. It doesn't sound like your stepmom would do that since she thinks things are going fine. You need to go to court to seek permission from a judge to make decisions for your stepmom and dad. This process can take several weeks and is very complex.  

It is never too late to take steps to protect your assets. While it is certainly advantageous to plan ahead, there may very well be worthwhile options for you to pursue. You should consult with a certified elder law attorney in your state. 

It is best to seek court approval for the loans. Since you are already appointed guardian, simply make an application to the court. Also, it is very important to document everything.

A guardianship is the way your friend can gain control over his dad's affairs; however, your dad has the right to fight it and if he can convince the judge that he has capacity, then a guardian will not be appointed. Merely having dementia does not necessarily mean you need a guardian, although it may depending on the individual circumstances. The only way to get to the bottom of it is to proceed in court and if dad contests the guardianship, expect a long drawn out, costly proceeding.

If you are concerned about mom and you feel that she does not have the capacity to make decisions for herself, you can commence a guardianship proceeding to have someone else appointed as her guardian to make personal and financial decisions for her. The person appointed guardian is determined by the judge and it may or may not be you. It could be a third party. Keep in mind, however, that people are allowed to make what you think are "bad" decisions such as living with someone and being influenced by them. That does not mean that they need a guardian. They only need a guardian if they cannot understand and appreciate
their limitations and the consequences of their actions. 

This is a very complex issue. Since this is a private insurer, you need to go up the chain of command at your insurance company. If you still don't get any satisfaction then you should either contact the state's insurance commission or hire an attorney to sue the insurance company. 

Assisted Living regulations vary from state to state, but chances are the agreement itself specifies the terms and condition upon which it can be altered. Your best option is to consult a lawyer within your state for specific guidance.
 

If the caregiver is a family member taking care of a parent, then I would suggest that the family contact an elder law attorney as soon as possible. There are asset protection strategies that can be used in conjunction with a family caregiver and that is something that should be discussed with a knowledgeable and experienced attorney.

My advice would be to make absolutely certain that your father is competent to sign a Power of Attorney. Perhaps the best source to verify this would be the family doctor or the doctor who is treating your father for the dementia. The confirmation by the doctor should be in writing to avoid any issues regarding the legality of the Power of Attorney down the road. If your father is competent to sign a Power of Attorney, I would have a Financial Power of Attorney and a Health Care Power of Attorney prepared and signed as soon as possible.

Based on the information given, I would have VERY SERIOUS reservations about putting assets into a trust, especially a Revocable Living Trust. Assets that are transferred to a trust are subject to the five year look back period if an application is made for medical assistance. Although it is not pleasant to think about, the chances of your father needing long term care in a facility within the next five years are fairly significant. I would say that there are better planning techniques available to protect some of the assets.

Finally, the National Academy of Elder Law Attorneys has a great website to help find an attorney who can best help with these kinds of issues. The address for that website is: http://naela.org/.

The best solution is for the daughter living in Kansas to file a petition to be appointed Guardian of her mother. It would be appropriate to cite any situations where you feel that the step-father abused your mother, either physically, emotionally or financially, as long as you have proof. Since you do not have money to hire a lawyer, you should approach the Legal Aid office in the county where the daughter living in Kansas resides to see if someone from that office can file the Petition.

A trust is a legally binding document in which you give another person or entity the right to manage certain designated assets. Once the assets are placed into the trust, they are no longer owned by you, but rather by the trust. Generally a trust can either be revocable or irrevocable. A revocable trust, for the most part, means that the trust can be cancelled at any time by the person who made the trust. An irrevocable trust usually means that assets placed into the trust are there until either they are dissipated by the trust or the person making the trust dies. Assets put into an irrevocable trust generall cannot be taken back by the person who put them into trust.

For the most part, I would not recommend putting the resident property into a revocable trust because for most people the primary place of residence, i.e., your house, does not count as a resource in determining Medicaid eligibility. The only time a house counts is if a person has more than $500,000 or $750,000 (depending on your state’s eligibility rules) of equity in the house and there is not a spouse, child under age 21, blind child, or permanently and totally disabled child residing in the house.

Therefore, for most people the house does not count as a resource, unless the house is transferred to a revocable trust. In that situation the full value of the house is now a countable resource, oftentimes making it impossible for a person to qualify for Medicaid. My advice for seniors thinking of making such a transfer is simple: don't do it.
 

Many times when talking to clients about planning for long term care they tell me that they are aware of something called the "five-year look-back period." Unfortunately, many people don't understand the relevance of this period and why it is such an important concept in protecting assets from the cost of long-term care. In order to qualify for Medical Assistance (Medicaid), the amount an applicant can have in countable resources is very small and varies from state to state. For example, in Pennsylvania, countable resources cannot exceed $2,400, or $8,000 if the applicant's income is not in excess of $2,022 per month.

For a number of years people about to enter a nursing home would transfer their assets to family member in order to appear "poor on paper." The Federal Government has enacted several laws to prevent this from happening by declaring that assets transferred for less than fair market value within a certain period of time prior to applying for Medicaid will result in a penalty. Under current law, the governmental office reviewing the Medicaid Application will look back approximately five years prior to the date of the application to see if any transfers for less than fair market value have been made. As an example, assume that someone in Pennsylvania transferred $90,176.90 in assets on January 1, 2008. That person then enters a nursing home on February 1, 2010 and applies for Medicaid. Since the transfer occurred within five years of the application date, the caseworker in the County Assistance Office will have no choice but to assess the legally mandated penalty on the applicant. Unfortunately, it is the severity of the penalty imposed that makes the look-back period is so important.


Under Federal Law, the penalty is assessed when the applicant would have otherwise qualified for Medical Assistance. In other words, after the applicant has exhausted all of his or her resources and is now, in essence, broke. The penalty is calculated by taking the amount of the gift and dividing that by the average daily rate of nursing home care, which in Pennsylvania is now $247.06. The resulting number is the amount of days that the government will not provide Medicaid to the applicant. Using this example, the $90,176.90 gift will be divided by $247.06, resulting in a penalty period of 365 days. This means that after the applicant no longer has any assets to pay the nursing home he or she will not receive any Medicaid benefits for one full year, leaving the applicant with no resources to pay the home for that period of time. It is clear then how the failure to account for the look-back period when transferring assets can have an enormous financial impact on an applicant and why that phrase is so important to understand.

Nobody wants to go into a nursing home and nobody wants to see a family member go into a home. However, there are many situations where long-term care in a nursing facility is the best option available. Receiving quality care in a nursing home is not only possible, but should be expected. The key is for family members to actively participate and remain highly visible. Pennsylvania law, for instance, requires a nursing home to assess the resident's condition, abilities and limitations within two weeks of admission. This "Care Plan" must describe the resident's needs and determine how those needs are to be met. The Care Plan must be revised if the resident's condition changes and additionally, regardless of the resident's condition, must be reviewed every three months. Family members should absolutely participate in the formulation and review of the Care Plan. It would also be very beneficial to have an advocate, such as a Geriatric Care Manager or Attorney present at all Care Plan meetings. Any nursing home that is certified to accept Medicare or Medicaid is governed by the Nursing Home Reform Act, which impose a number of requirements regarding the care of the residents. For example, the Act requires a nursing facility to help a resident maintain or improve their ability to bathe, dress, groom, walk, eat, talk and use the toilet. The resident must be able to remain as independent as possible. The home must try as hard as possible to prevent such things as bed sores, pressure ulcers or decubitus ulcers. The Nursing Home Reform Act significantly limits the use of restraints, which require a doctor's order. The use of a feeding tube is also limited and requires the consent of the resident or resident's representative. Family members can ensure they are seeing the full spectrum of staff and care they provide by visiting at varying times and days.

If a family member is concerned about the care that is being provided, they should voice their concerns to the staff and work their way through the home's chain of command. If care does not improve, the family member should seek assistance from their local Long-Term Care Ombudsman. If still unsuccessful, the family member can complain to their state inspection agency and ultimately to the Center for Medicare & Medicaid Services. It is advisable for the family to engage the services of a Geriatric Care Manager and an Attorney during this process.

For families of those about to enter a nursing home, I highly recommend purchasing the publication, 20 Common Nursing Home Problems-and How to Resolve Them. This publication can be ordered from the National Senior Citizens Law Center at www.nsclc.org.
 

Basically, a power of attorney is a written document in which an individual (the "principal") gives another person (the "agent") the authority to act for the principal on the terms and conditions specified in the document. That is the bare-boned legal definition of a power of attorney. Does that answer the question as to why one is necessary? Absolutely not! Therefore, here is a better definition: A power of attorney is a document that gives someone else the legal right to do things on your behalf.

There may come a time when you might need someone to take actions in your place. For example, you may not be able to handle your finances as well as you might have liked. Reconciling checking accounts, paying bills or managing your assets may become overwhelming for you. When this happens, people tend to make mistakes resulting in bounced checks, unpaid bills and the like. In order to prevent your financial situation from becoming completely chaotic, you can designate an agent to handle your finances in a Financial Power of Attorney. A Financial Power of Attorney that is properly drafted to suit your particular needs and circumstances can really help you secure and maintain your financial future.

A word of caution though—agents have been known to abuse the rights given to them in Powers of Attorney. Financial elder abuse in this manner is, unfortunately, becoming more and more common. Therefore, anyone thinking of preparing a Financial Power of Attorney should absolutely know and trust their agent. Choosing the right agent will enable you to receive all of the benefits of this extremely important document without incurring any of the potential drawbacks.

Regarding Powers of Attorney, as Yoda would say: "There is another!" Just as people may need the help of an agent in making financial decisions, they may need an agent's help in making medical ones. Suppose, for example, a person is having an operation and is under general anesthesia. During the course of the operation, the surgeon realizes that there is another procedure that needs to be done. The surgeon obviously can't ask the anaesthetized patient, so what recourse does the doctor have? Well, if the patient had previously executed a Health Care Power of Attorney, the doctor can ask the agent. A Health Care Power of Attorney allows an agent to manage the medical care of a person who, either temporarily or permanently, has been medically certified to be unable to make medical decisions on his or her own. Again, choosing the right agent is of paramount importance. The agent should be someone who knows you very well and knows what medical decisions you would make in any given situation.

As you can see, I think these two Powers of Attorney are extremely important documents to have in your Estate Planning arsenal.