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Alzheimer's, Dementia, and Parkinson's Disease

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Elder Law

- Howard S. Krooks, JD, CELA, CAP
- Ellen Morris, Esq.
- Shana Siegel, Esq., CELA

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Live In Care

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Nutrition Know-How

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Quality of Life

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Safety and Hospitalization Concerns

- Martine Ehrenclou, M.A.

Senior Healthcare

- Archelle Georgiou, MD

Senior Medical Issues

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Senior Transitions

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Elder Law

Howard S. Krooks, a partner of Elder Law Associates PA with offices throughout Southeast Florida, was admitted to practice law in New York (1990) and Florida (2004). Mr. Krooks is Of Counsel to Amoruso & Amoruso, LLP, with offices in Rye Brook, New York. He splits his time between New York and Florida, where his professional practice is devoted to elder law and trusts and estates matters, including representing seniors and persons with special needs and their families in connection with asset preservation planning, supplemental needs trusts, Medicaid, Medicare, planning for disability, guardianship, wills, trusts and health care planning with advance directives.
Ellen S. Morris is a partner in the law firm of Elder Law Associates PA with offices throughout Southeast Florida. She was admitted to practice law in Florida in 1990 and devotes all of her professional time to elder law, wills and trusts, Medicaid and nursing home planning, Medicaid applications, disability planning, special needs trusts, guardianship, asset preservation planning, estate and trust administration, elder law litigation and nursing home residents' rights litigation.
Shana Siegel, Esq., CELA, is certified as an elder law attorney by the ABA-approved National Elder Law Foundation. She has been involved in health and long term care issues for over twenty years, with a New Jersey practice dedicated to elder law and special needs for the last seven years.
Q:

Under sound mind my uncle bypassed his children and made me his DPOA and healthcare proxy. He also made me a joint holder on his bank accounts and stated it was a gift to me because he did not want his children to have it. To his children's dismay and dislike he advised his children of "his decision." They waited until after his stroke when he could no longer speak for himself and applied for guardianship. Guardianship was awarded to them, and they later came after me for the gift. Am I obligated to return the gift? Do I have any legal standing to keep what my uncle wanted me to have? 


A: Answered by Howard S. Krooks, JD, CELA, CAP

As long as your uncle had capacity to make the gifts to you when they were made, the gifts may be upheld by a court. However, you must be prepared to prove that your uncle made a knowing and voluntary gift to you, and that you did not unduly influence him in making the gifts. If you are unable to sustain this burden of proof, then it is conceivable that a court would order the return of the gifts. 

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Q:

Both my parents are elderly (87) and have recently had health issues. They have about $150K in savings and own their home worth about $125K. They planned to give money $2,500 to my daughter (their granddaughter) to help with college tuition. Recently they granted power of attorney to my older brother and he is concerned about causing an issue with Medicaid when their money runs out. Can he give the $2500 as a gift or as a loan from my parents to me or my daughter and if a loan to be paid back with interest within the next 2 years without causing Medicaid fraud issues? 


Timothy from NY
A: Answered by Ellen Morris, Esq.

A gift will create problems for Medicaid eligibility and create a penalty period during which time your parents will not qualify for Medicaid in New York. However, if this is a one time only gift, then the penalty period would be less than one month and would only be once either parent is residing in a nursing home. A loan evidenced by a promissory note is the better way to approach this situation, provided that it is an arm’s length transaction and a reasonable rate of interest is charged. 

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Q:

I am trustee, Social Security payee and P.O.A. for my father's 87-year-old widowed and childless sister. She is a resident of Florida and is currently in a dementia facility there. I live in California and all of her mail comes to my California address. Are there steps that I can take so that when she passes away, the state of CA will not be able to tax her estate? Or should I not even worry about this? 


Gary from FL
A: Answered by Ellen Morris, Esq.

She is a Florida resident and the state of CA will have no reason to tax her estate. However there are steps you may take to avoid probate here in Florida, which will save time and money. Contact a certified elder law attorney for specifics. 

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Q:

My mother recently died. She had seven children, and one daughter died before her, leaving a daughter of her own. Would the granddaughter then take the place of the sibling who died, as far as the estate and inheritance go? My five siblings feel like the estate should be divided 6 ways instead of 7. I feel like the daughter of my deceased sister should be the 7th part of the inheritance. 


Lisa from OR
A: Answered by Shana Siegel, Esq., CELA

The answer to this question depends on whether your mother left a Will and, if she did not, it depends on the laws of intestate distribution (distribution of an estate where there is no will) of the state in which she died domiciled. It is a common rule for the heirs to take “by representation,” which would result in your niece inheriting her mother’s share, but this is a matter of state law, and you need the advice of an attorney who is expert in the laws of the relevant state. I always recommend hiring a certified elder law attorney (CELA) as CELA certification is only given with proof of at least five years of practice in the area of elder law, and after the attorney has passed a rigorous day-long exam.

 

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Q:

I have been a caregiver for a now 92 year old gentlemen for 9 years. I just terminated my employment with the agency because I am moving. I will be moving hundreds of miles in a few weeks. Is there any way I can visit even though I signed a paper stating that once my employment with that agency was over I was not to have contact with the client? He is in the last stages of life and I just want to visit my friend while I still live close by. 


Pamela from RI
A: Answered by Shana Siegel, Esq., CELA

The answer depends on the contract that you signed, the agency and the client. These contracts limit contact for several reasons, such as to protect a client from having an employee intruding on their personal life and to prevent private contracts where the client hires the employee and eliminates the agency’s role and income from the placement. Your situation seems as if it would fall outside those two parameters, and the Agency would likely allow an exception to their policy. You are leaving employment not because of a situation which reflects badly on your relationship with the client, but you are moving far away, so that it is highly unlikely that you would be taking away their business through a private care contract with the client. Furthermore, it would likely be a comfort for the client to have the opportunity to have you visit. The best approach would be to discuss with the agency your wish to visit the client and to ask for a specific, written release from the no contact clause of the contract.  

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Q:

Mother and father entered hospice care within a day of each other. Mother then passed within 4 days. She prepaid all funeral expenses and has a death insurance policy payable to father of $10,000. Medical and durable POA has passed on in succession to their daughter. The insurance benefit has not been applied for. There are no other assets such as real estate. Is that cash benefit owed to the nursing home for the father's hospice care? 


Dan from OH
A: Answered by Shana Siegel, Esq., CELA

It depends. If the care was covered by Medicare or another insurance coverage, then the policy benefit is not owed to the facility. It is possible that Medicare paid for hospice care but not for room and board, in which case the facility may have an outstanding claim. I recommend consulting an Elder Law attorney in the state where they reside.  

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Q:

I have 2 questions: 1) My mother has cerebral degeneration and has a PEG tube placed. She takes nothing by mouth. She is homebound and bedridden. She can no longer speak. What is Arkansas's law regarding removal of PEG tubes once one is placed as her condition will never improve—it will only continue to worsen with time. 2) My father needs to get a Financial Power of Attorney done so that I can assist him with his finances, should he no longer be able to. I live in Ohio, he lives in Arkansas. Are there any issues with this arrangement since I live out of state? 


Linda from OH
A: Answered by Shana Siegel, Esq., CELA

These are questions which are specific to Arkansas law. You should consult with an expert in Arkansas Elder Law, preferably a Certified Elder Law Attorney (CELA), regarding end of life decisions in that State. As you must know, decisions regarding life extending measures are an important aspect of end of life planning. This issue is part of the “right to die” discussion, which is so politically charged yet so personal and poignant a decision for an individual and their family. How these decisions are made can be influenced by ethical rules of a particular hospital, and can even result in families bringing the matter before the Courts to assist them in effectuating their plan for their loved one.

In many states this decision can be assisted by the individual preparing a living will and a healthcare proxy when they are still competent to make decisions, so that the wishes of the individual are clearly stated and the authority to make end of life decisions is delegated to a trusted individual to be able to make the necessary decisions if or when necessary. A CELA is an attorney who is certified in their expertise in advising individuals to prepare planning documents that reflect their choices and that will be honored by medical professionals if possible under the laws of a particular state. Without such a document, each state has a different rule regarding who makes the decision to allow or withdraw life sustaining treatment. 

With regard to managing your father’s finances while residing in another state, again, an Arkansas Elder Law attorney will be able to help you prepare a financial power of attorney. Your out of state residence will not be an insurmountable problem, but banks have rules regarding which forms they will honor in order to allow access to an individual’s accounts, no matter what the state laws say should be valid, and it is sometimes necessary to prepare additional forms for a particular financial institution. There are also estate planning tools associated with access to bank accounts, naming beneficiaries, and titling of assets which your father may wish to explore. An Elder Law Attorney can help your father with setting his affairs in order so that he can plan for who and how his finances will be managed.

 

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Q:

My mom did not earn enough money to pay for her assisted living and nursing home the last few years of her life. She has three daughters, and two helped pay the expenses with the understanding of all siblings that when she died and we sold the house or leased it, that we would be paid back first and then all siblings would split the rest equally. She did die and we leased the home and have been paying off the equity line. Then we started to pay the two loans to the siblings. Do those two have to pay taxes on this reimbursement since they loaned the money with after-tax income? If so, wouldn’t they be paying taxes on this money twice? The home is in the Atlanta, GA area. One sister from GA, the other from MI. 


Linda from GA
A: Answered by Shana Siegel, Esq., CELA

The answer is, it depends. You are asking if the income from rent received from your mother’s estate must be counted as income, or if it can be credited as reimbursement of past loans and is therefore not income. This is a question to ask an accountant and a tax lawyer, and cannot be answered without examining the loan documents and the estate finances and distribution. 

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Q:

My father and mother were living independently in a bungalow unit in an assisted living facility in Oregon. My father became ill and they were moved into an "apartment" unit in the hospice area of the main building of the facility. My mother has dementia, but this was not a problem while my dad was alive. However, he died over Christmas and now my mother is alone. The facility manager says she needs to be in the Memory Care Unit, but they have no room. Since they cannot properly care for her, they just gave her a 30 Day Move-out Notice and are telling me I have to find a place for her. I have no resources, I live in Virginia, I am an only child and I have Parkinson's disease. Plus, my parents were not on Medicaid when my dad died. My mother would qualify for Medicaid, but I'm still working on getting the application finished. Can they really just throw her out? What are my options? I can't afford an Elder Care attorney. 


Ron from VA
A: Answered by Shana Siegel, Esq., CELA

This is a situation where it would be helpful to have the expert assistance of an Elder Law Attorney. Your mother needs an advocate. With her memory issues she is vulnerable even if she does have rights which aren’t being honored. Her rights may stem from Oregon Standards for Discharge from long-term care facilities, or from a contract with the residence which gave her more rights than mere statutory minimums.

I recommend you call the Oregon Long-Term Care Ombudsman’s office and ask them to advocate on your mother’s behalf. The Ombudsman may be able to settle the problem or to direct you to legal services for the indigent which can help in advocating for her needs. The Oregon State Bar Association may also be of help in finding a pro-bono attorney for your mother.
 

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Q:

My husband has Alzheimer's disease. He is 56 years old. This is his 2nd marriage. We have a 3 year old son and he pays child support to his ex for his two other sons, who are 18 and 20. If we apply for Medicaid to get him in a nursing home, will they take into consideration that he has a family and that he still pays for support? Will we lose our house if he has to go to a home? 


Jean from NY
A: Answered by Shana Siegel, Esq., CELA

You are right to be concerned. The good news is that Medicaid regulations do provide for certain resources to be kept for the “community spouse” (you), for minor children and for a carefully defined set of protected categories of resources and allowable expenses. It is important to have an expert go over your options with you and to set a plan for the future with a disabled spouse. Medicaid planning involves a set of interdependent decisions based on an individual’s specific medical and financial needs and resources.

You need to consult an expert in Elder and Disabilities Law. Attorneys who are expert in this set of decisions can be recognized by their Certified Elder Law Attorney (CELA) certification by the National Academy of Elder Law Attorneys, (http://www.NAELA,org). CELA certification is the only certification of this expertise recognized by the American Bar Association. I recommend you find a CELA in New York to advise you on how to proceed.
 

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Q:

In NY my mother signed a will in 2009, but was unwilling to sign a POA at that time. The lawyer gave us the POA with instructions so my mom could sign it at a later date. My mom finally signed this original POA in 2012. Recently she was hospitalized and so we brought the POA to the bank so we can pay her bills. The bank will not accept the POA because it does not include signatures of the two POAs that she assigned. It seems the form was changed after 2009. What do we have to do to make this form valid? Can a lawyer just put an attachment to this POA or do we have to start all over? 


Lori from NY
A: Answered by Shana Siegel, Esq., CELA

Yes, New York changed its form in September of 2010. And New York is very picky about the language in its form. You have to start all over if possible, using the right form. If it is not possible for her to execute a new POA because she lacks capacity to do so, your lawyer will advise you as to how to apply for a guardianship. Guardianship law is a specialized field, and I recommend consulting an attorney with expertise in the area of Elder and Disability law. 

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Q:

My mother is 96 years old. She is blind, cannot hear well and cannot walk due to deterioration of her spine and hips. She has been under hospice care for the past 18 months. I must be here most of every day to help with her care. Can I receive $50 per week from her funds for the care I provide her? My sister is her power-of-attorney for financial matters. We are in discussions about this and want to be clear on what is allowable. Thank you.  


Rita from PA
A: Answered by Shana Siegel, Esq., CELA

Hospice is a Medicare-funded service that is available for palliative end-of-life care. When hospice care begins, life-saving skilled medical measures end. Though part of qualifying for hospice is a physician’s assessment that the patient is expected to live no more than six months, it is not uncommon that palliative care is so successful that the patient lives on longer than the six months required. A hospice reauthorization is usually available.

The issue of payment from your mother’s private funds relates to her directions to her power of attorney, and also relates to her eligibility for government benefits such as Medicaid. If you are contemplating being paid from your mother’s private funds, there are situations in some states where it is permissible for a caregiver-child to be paid from the patient’s own funds and for those payments to be deemed an authorized transfer of funds should the patient ever apply for Medicaid. There are restrictions on the hourly rate, and you are required to keep careful timesheets.

It is worthwhile to consult with a local elder law attorney regarding whether there are restrictions on you entering into a family caregiver contract with your mother or with her Power of Attorney on her behalf.
 

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Q:

 My sister has power of attorney for my mother who is in a nursing home, Can she prevent me and my other sister from asking about my mother’s health and welfare from the nursing staff? We don't want to interfere with her care, but we have been refused information because we are not on some kind of list. When I asked the nursing home administrator about this list she told me I had to speak to my sister.


Barbara from IL
A: Answered by Shana Siegel, Esq., CELA

It is difficult when family members lose competence. Rather than the natural family relationships governing situations such as access to your mother, legal forms and nursing home rules of privacy come into effect. Legally, simply being someone’s child does not give you access to their private information. Each person has the right to determine who is told about their health. When they are no longer able to manage their own affairs, or simply wish someone else to protect them, they can indicate who they wish to share what information with by designating a power of attorney to make certain decisions for them.

The nursing home is required to protect their patient’s privacy, and it sounds like they are careful to keep a list of who they are allowed to give information to. You don’t say you are on a list of people who are not allowed to have information, merely that you have to ask your mother’s power of attorney to give permission for the release of your mother’s information. Depending on the terms of the power of attorney, your sister may have the right to control information regarding your mother. Your mother may have otherwise given control to her, as well.

If there is some difficulty regarding obtaining information from your sister, I recommend hiring an attorney to help negotiate an arrangement between you, your sister, your mother and the nursing home.

If you are concerned that the care your mother is receiving is neglectful, contact the Ombudsman for long term care in Illinois and ask for an investigation.

 

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Q:

My mother is 94, suffering many health issues and getting direct care solely from me, her son, with the exception of 2 hours per day personal care from a private-pay agency. I have no participating siblings or support. My mother's pension income is approximately $5500 a month. She lives in my home. All bank accounts are jointly held by her and me. The original deposits were from the sale proceeds of a home seven years ago that we also held jointly. Should she go into a nursing home in our area, she would run a deficiency of about $3500/mo if using just her income. Can the joint accounts be attached? Should I close those accounts and place them in my name only? What other ramifications are there in doing that? Would she


Chris from MA
A: Answered by Howard S. Krooks, JD, CELA, CAP

The joint accounts may not be attached; however, the existence of the accounts will render your mother ineligible for Medicaid as she will be over-resourced. There are many avenues available to you with proper planning to achieve Medicaid eligibility for your mother, even with her high income, and still preserve the assets, including separating the assets from the sale proceeds, deducting care expenses, using a Personal Services Contract and other planning techniques. You should not close the accounts without first meeting with an elder law attorney as the closure of the accounts may be considered a gift, which would render your mother ineligible for Medicaid.

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Q:

My parents are living together, but are not married. They are currently renting a home in Port Saint Lucie, FL. My question is, if one parent passes away, is the other party held liable for the reminder of the lease?


Wendy from FL
A: Answered by Howard S. Krooks, JD, CELA, CAP

If both parents have signed personally on the lease then they are each individually liable for the obligations under the contract.

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Q:

My wife has been diagnosed with Lewy Body dementia by two different doctors. Her condition has been deteriorating rapidly over that past few years. She is currently bedridden for most of the day and night. I am now at a point where I can no longer give her all the help she needs. We get some help, about 6-7 hours a week from a local agency, but have had to hire additional help, 12 hours a week, at a cost to us of $144 per week. I am a disabled veteran, but get very little help from the VA. Are the new expenses, about $7,500 per year, deductable?


Leslie from IN
A: Answered by Howard S. Krooks, JD, CELA, CAP

This is a question for your CPA or accountant as the answer depends on your complete tax picture. However as certified elder law attorneys we may be able to obtain a monthly check from the VA to help defray the costs of the private aides and we may also be able to insure that your wife obtains Medicaid in a skilled nursing facility when and if placement is necessary.

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Q:

My brother and I were informed that my 62 year old stepmother put my 82 year old dad in a nursing home. We were shocked that she did not discuss this with us, and I would like my dad to live with me. We called the nursing home and she has full power of attorney, so we aren’t able to get any information about his health or his condition. We asked to have a meeting with his doctors and caseworker, but were told my stepmother would have to set that up. She says she will, but keeps giving us the runaround. Now she is claiming he was abusive to her and he has Alzheimer’s. What can I do? They live in New Mexico.


Sam from NM
A: Answered by Ellen Morris, Esq.

To address care issues, you may wish to retain an elder law attorney in New Mexico to request a care plan meeting with the facility and your stepmother in order to address your father’s care plan needs and secure your involvement. If the care plan meeting is unsuccessful or impossible, then it may be necessary to file for guardianship in New Mexico.

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Q:

My father was taken to the hospital Friday January 18th and is doing extremely poorly after a massive stroke and bleed on the brain. The next day my stepsister (theonly child for my father’s second marriage) emptied his house without informing me or anyone else. I am the sole executive if anything happens to him. Is she allowed to do this?


Graham from DE
A: Answered by Ellen Morris, Esq.

During lifetime, an individual who holds power of attorney, depending on the terms of the document, may be able to take possession of the property. If your stepsister has power of attorney for your father, including power to manage his personal property, then she may have the authority. However, she is supposed to act in the shoes of your father and in his best interest, and if she is not doing so, there may be an action against her to compel her to return the property. An individual who is nominated as an executor (known as a Personal Representative in Florida) does not have any authority to act until the court grants such authority after the death of the individual in a probate proceeding and such authority only extends to estate assets.

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Q:

My mother-in-law is in a nursing home (she will not be getting out). We have been paying her mortgage for the last four years because we have been told when she passes, we can sell the house and split the money among her four kids. Her $600 social security check goes straight to the nursing home. When she dies, will the nursing home take the house? Or we will in fact be able to sell it? We live in South Carolina. I don't want to be throwing money away if we can't sell it afterwards.


Rachel from SC
A: Answered by Ellen Morris, Esq.

Assuming the house was the primary residence of your mother prior to going into the nursing home, you have been given correct information and her children will inherit the house upon her death free and clear of claims from the nursing home, Medicaid and other creditors. However, in order to inherit the home, if titled solely in your mother’s name, a probate proceeding will be needed. Probate is costly and time consuming. We recommend your mother or her Power of Attorney execute a “ladybird” deed pursuant to which which the property will pass by operation of law to the children without the need for probate. Our office can prepare and assist with the execution of the deed.

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Q:

My mother, 89, and father, 90, still live in their home, which is paid off. They live in NY state. About 20 years ago, my parents put their home and all stocks in an irrevocable trust in my and my two sisters’ names. If they were to go into a nursing home, what assets would the facility take to pay for their care? Would the facility be able to access the money from the trust? 


Lisa from NJ
A: Answered by Shana Siegel, Esq., CELA

That really depends on the terms of the trust, but if drafted correctly the answer should be no. The trust may require the income to be used but not the principal. 

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Q:

My brother and I are concerned about our grandmother who lives with our parents. She fell for a second time and broke her left hip this time, and is now in a rehab/nursing home. She fell before and broke a bone in her face and arm. When she goes to the hospital they ask: is anyone at home miss treating you? She always says no. She has dementia and in her head she thinks everyone is nice. I had to ask the doctor to check her blood, check her bladder, see if she is dehydrated because no one else did—she needed 2 pints of blood, she had a UTI, she was dehydrated, and she got a bed sore. This woman was good to my brother and me, and my parents treat her like crap and do not care. They sold her home for nothing and do not want her anymore. After her hip gets better, how can we get her if our father has POA (she gets SSI and disability)? 


Upset from WV
A: Answered by Shana Siegel, Esq., CELA

You might want to consider calling adult protective services who would then conduct an investigation. 

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Q:

My father had a serious motorcycle accident in 1991 with head trauma and brain injury. My mother took care of him from then until she passed away in 2011. My dad is on disability and unable to make important decisions on his own because of his head injury. Since my mom passed, I have moved in with him to care for him. He is easily persuaded by anyone and can be convinced of anything. I have tried to talk with his doctor about his mental health, as he has become increasingly violent since my moms’ passing. His doctor refuses to speak with me because my dad told him not to. He is about to lose his house and vehicles because he refuses to let me help him with his bills anymore. He has met a woman who has talked him into giving her all his pain and anxiety medication each month. Therefore he is not taking part of his medication to help keep his mind balanced. Is there a way I could legally get POA over him to get his mind and life back in balance? 


Leslie from TN
A: Answered by Shana Siegel, Esq., CELA

Your only option is filing for legal guardianship. This can be quite difficult in this type of situation as you will need to get him evaluated by physicians. I would suggest you speak with a certified elder law attorney in your state. 

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Q:

I have been living in my elderly mother's home for the past 2 years to care for her. She has chronic illnesses that would make it unsafe for her to be alone. My sisters have informed me that when my mother dies, all of my belongings will become part of my mother's estate, since they are in my mother's house. Is this legal? What can I do to protect my belongings from being taken by my sisters after she dies? 


Jane from MI
A: Answered by Shana Siegel, Esq., CELA

I would send them a letter that outlines what property you purchased and belongs to you. They cannot claim the property simply because it is physically located in your mother's home.  

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Q:

My mother, age 66, has Alzheimer’s and lives with my 86 year old father. I went through Florida’s access application and applied for Medicaid for them. They live off social security and make roughly under $1700 a month combined. They pay a mortgage and are receiving some food stamps. However, they were denied for Medicaid. There was nowhere on the application to state that she has Alzheimer’s. How do I proceed? I can't even get a counselor from children and family on the phone. 


Barbara from FL
A: Answered by Shana Siegel, Esq., CELA

First you need to return the denial notice with a request for an appeal immediately. This may allow you to preserve her eligibility date. I would suggest you seek out a social worker at a senior center, Jewish Family Services or some other community support that may be able to assist you.  

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Q:

My Mother's assets are extremely low at this point so she is trying to apply for Medicaid. She has a term life policy that has a cash surrender value of about $3500, which is standing in the way of her Medicaid eligibility. She has signed the beneficiary over to the funeral home, thinking this would satisfy Medicaid's requirements. Given that she is applying for Medicaid we understand that as her children, we cannot touch this asset and put it in our names even though we are her POA. It appears to us that this is best choice at this point. Are there other options that make more sense? 


Jeff from IN
A: Answered by Shana Siegel, Esq., CELA

She should just ensure she is complying with the Medicaid regulations regarding pre-need funeral arrangements.  

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Q:

My 75-year-old mom is still in very good physical and mental health. She's had type 2 diabetes for 20 years, but it's under control. However, she had a medical scare last year, a side effect from a medication. At that time, she added me to her bank account, though I have no direct access. She says she has a living will, but I'm not sure where it is. And, as far as I know, she hasn't given anyone a power of attorney. Is that the next step? 


Sami from CA
A: Answered by Shana Siegel, Esq., CELA

Yes, absolutely. She should make sure she has a POA as well as a health proxy or living will, which appoints an agent to make decisions for her.  

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Q:

My Grandfather (84) passed on 12/21/2012. My Grandmother (80) was told she must apply for Survivors Benefits (SSI) to match what his monthly SSI was. Why is she unable to collect both SSI accounts? In effect, she is losing $900 a month, which was just enough to keep the house running. 


Michael from MO
A: Answered by Shana Siegel, Esq., CELA

Each of them was entitled to their own Social Security benefits. As his surviving spouse, she is entitled to the greater of her benefits or his, but not both, because she is only one person. She may have to look at other options like a reverse mortgage. 

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Q:

My husband and I are living with his mother in Florida due to her decline in health and dementia. She is 89 years old. She only has Medicare insurance. It is coming to the point where she will have to be placed in a nursing home. She has $20,000 in stocks and she owns her home. My husband’s name has been on the house since it was bought 20 years ago and he has POA. Can the nursing home/Medicaid force us to sell the house? Thanks for your help. 


Susan from FL
A: Answered by Shana Siegel, Esq., CELA

They cannot force the sale of a property that is jointly owned. However, if her name is also still on it, then the state could place a lien on the property after her death. 

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Q:

My Mother has been diagnosed with Lewy Bodies Dementia and told me she is "losing it" and asked me to take over. She has been living with us for 5 years now and I do have POA and I am the only named person in her will. But she has a very large sum of money in investments, two houses and a vehicle. How do I go about getting all of this in my name? 


Amy from FL
A: Answered by Shana Siegel, Esq., CELA

There are pros and cons of doing this during her lifetime. You may not want to do so if there is any chance your mother may need Medicaid as they penalize transfers made within five years of application. I would suggest meeting with an elder lawyer who can advise you about all of the tax and asset preservations issues.  

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Q:

My father is living with my sister. He’s 83 and had a stroke on a Friday. She didn't call an ambulance or take him to the hospital. She let him lie in bed for 4.5 days while she was going all through his paperwork, did not call me until Tuesday evening 7 pm to tell me he was admitted to hospital and put on morphine. Is this considered a crime of negligence? 


Tammy from ME
A: Answered by Shana Siegel, Esq., CELA

It sounds like it would qualify as elder abuse if your state has elder abuse criminal statutes. It certainly would warrant a call to adult protective services if he is released back into her custody. 

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Q:

My grandmother has dementia/Alzheimer’s and has been dating a man for about 4 to 5 years. This man came along right when her signs and symptoms began to appear. Also, he lives in California; we live in Delaware where her house is. He takes her to California for months and months and only comes back to Delaware for a few weeks. We now know that she is not capable of making her own decisions and she relies on him to make them all for her. However, he is not making these choices based on what is best for her. In a sense, she is brainwashed. In fact, she is not "allowed" to see any of the family unless he is around, a rule he made. We know he does not take good care of her—she has been in the hospital a few times because she has not taken her medicine or forgot she had already taken it and overdosed. She needs a supervisor. Is there a way to legally make him go away and in a sense take custody of my grandmother? Anyway to prove she is incapable of making her own choices? We know she does not like having to choose between the family and this man, but what kind of person would take someone away from their family when they are losing their mind? 


Ashley from DE
A: Answered by Shana Siegel, Esq., CELA

This is a difficult but not uncommon situation. Your family needs to consult an elder law attorney with experience in contested guardianships. This will involve court action and could get messy, but should be addressed before your grandmother ends up being seriously harmed by this man. 

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Q:

My Dad is 74 and was diagnosed with frontal temporal dementia in August 2012. Since the diagnosis and various visits to psychiatrists and social workers, it is suspected that he may also have undiagnosed bipolar disorder. We are trying to request further evaluation to confirm this and properly administer medications. Mom is his main caregiver and they live with my sister and her family in WA and visit with my family and me in BC. It has become painfully evident that Dad is requiring too much care for Mom to provide 24/7. They are on limited income and have a small amount of proceeds from the recent sale of their home. I need to ensure that Mom has money to live on once Dad is in care. Do I instruct Mom and Dad to buy a house? How do I calculate WA state Medicaid? I cannot get a straightforward answer anywhere...I look forward to your help!  


Carmen from WA
A: Answered by Shana Siegel, Esq., CELA

You need an elder law attorney. There are a number of certified elder lawyers in your state. There are spousal protections for your mother—generally she can retain half of their resources up to a maximum of $115,000 plus a primary residence. 

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Q:

My father-in-law is in a memory care unit for dementia at a skilled nursing/assisted living facility in Seattle. He became difficult and "unresponsive," and they sent him off in an ambulance to the hospital. The ER said there was nothing wrong with him physically, he was just angry. The ER doc evaluated him and there was no reason to keep him. We then heard that the facility where he is a resident refused to take him back! This was at 10pm on a Friday night—no warning. What can we do? Is there any recourse? Don't they have to give written advance notice? The hospital said this is called “patient dumping." We are stunned by this revelation. Any advice you can lend would be appreciated before we contact the facility. 


Marci from PA
A: Answered by Shana Siegel, Esq., CELA

Unfortunately, while there are protections against discharge without notice, there is no requirement to re-admit after hospitalization. This is an all too common ploy to get rid of difficult patients. That being said, I would contact your state ltc ombudsman as well as the state agency that inspects and regulates nursing homes. 

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Q:

My parents are renting a home from my husband and myself. In September 2010 we did a quit claim deed to add my mother's name to the deed so that they could homestead the property and decrease the taxes. The mortgage is in my husband's name. My parents want to refinance the mortgage in their names so that they can take advantage of the low interest rates and reduce their monthly payment. This is fine with my husband and I, but we want to make sure that if in the future they have to go to a nursing home facility that the home will not be taken by Medicaid. My parents are in great health now and we do not see them going to a nursing anytime soon, but wish to do things correctly so that we don't have problems in the future. 


Tara from FL
A: Answered by Shana Siegel, Esq., CELA

The state could not force the sale of the home, but in some situations they could put a lien on the property to the extent of your parents’ ownership interest. A local elder law expert should be able to help you. 

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Q:

Due to a family dispute, Mother (who had originally kicked Dad out of house) now has sole DPOA of him and has named her brother-in-law as health surrogate—neither of them has his best interests at heart. The health surrogate visits maybe once every 5 weeks; mom visits but has taken away his hearing aids and will not authorize an eye check. The nursing home is not giving him his glaucoma drops—he is a stroke victim who lays there with glasses on that do not permit him to see anything but the ceiling. I managed to talk the VA into sending me hearing aids for him (he is a WWII vet, age 86). Can I put him on the VA nursing home waiting list even though I am the daughter and not the DPOA? 


Sandi from FL
A: Answered by Shana Siegel, Esq., CELA

This is a very difficult and frustrating situation for you. You could try making a report to the local ombudsman office. 

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Q:

My dad was diagnosed with stage 4 lung cancer in 2010. My mom was already showing signs of dementia. I was the only one of their three children who could or would move in with them. My father passed in December 2010 and my mother’s health very quickly declined. So my husband moved in as well and we rented out our house. We had a new will drawn up for mom where my sister was POA and executor, I was second. Everything is to be split three ways. My sister and brother gave me grief about every single thing I did. My sister was being so ugly I thought it to be best if POA and executor be put in mom’s sister-in-law’s name, not her brother’s because he is a very rude and crude man. This has been over a year and a half now. The constant grief and difference of opinions still are a big issue. My brother doesn't visit my mom much, he lives an hour a way and “has a family.” We all have a family! My mom’s brother comes maybe 3 or 4 times a year. My mom has no memory of them. The few times I have talked to him he brings up putting her into a home. My mother’s doctor and my doctor said maybe we should get POA and executor back in our name. Now, my aunt will not sign the release of POA. My uncle called me after several attempts I made to them to see why the paperwork had not been signed and returned. When he called me he told me that he and my brother and sister did not agree with the change and they think I am unable to provide care for my mother. I don't know where to turn or what to do. I will continue to be mom’s caregiver till the day she passes.  


Cindy from NC
A: Answered by Shana Siegel, Esq., CELA

I suggest a family meeting with a geriatric care manager to address the immediate issues regarding caring for mom. 

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Q:

My stepmother is 73, and my biological father is 80 and has stage 2 Alzheimer's disease. My stepmother is jealous of my relationship with my father and is refusing to let me visit or see or call my father. She has no logical basis or reason for this. She was abused by her father when she was young, and I feel that she doesn't know what a normal, healthy father/daughter relationship is like. If my father and I hug or kiss goodbye (even on the cheek), she gets jealous. What are my rights for visitation to see my father? He currently lives at their home. 


Zola from IN
A: Answered by Shana Siegel, Esq., CELA

You have the right to visit your father. I would sit down with her and perhaps some neutral third party, such as a geriatric care manager, to discuss the issue. 

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Q:

My mother just had surgery for a tracheotomy/ventilator, which she will have for the remainder of her days. She will never speak or eat again, though she is of sound mind. The closest long-term care facility that will accept her is in Raleigh, NC. She has a home with a mortgage. Can I be added legally to the deed at this point? If so, then does this legally protect it from being seized by the nursing home? I am a retired police officer.  


Soncerie from NC
A: Answered by Shana Siegel, Esq., CELA

If you were added to the deed, this would be considered a transfer and would be a problem for Medicaid eligibility for your mother. You should see a local certified elder law attorney to see if there is anything you can do to preserve any of your mother's assets at this point. 

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Q:

I have a female neighbor, age 76, who had to go to the hospital in April, due to having a stroke. She was transferred about a month or so later to an Alzheimer’s center. She has not been back to her mobile home. The sheriff has posted an eviction notice on her home. To my knowledge, she had no power of attorney, but she does have family. No one has been in to clean the trailer since her leaving in April...it is now November. Is there anything I can do to try and help this friend of mine? I think she is still being billed for the space rent and utilities, although she has not been there. Please advise. Thanks! 


Barbara from CA
A: Answered by Shana Siegel, Esq., CELA

 If you have any information on how to contact her family, I would call the nursing home social worker and give this information to them.

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Q:

I have a parent with Lewy body dementia and have been reading about LBD patients who “assaulted” (pushed, hit, fought) caregivers during a period of agitated delusions and who were arrested, jailed and tried because the laws in most states don't recognize dementia as an impairment. What is the status of dementia in legal proceedings (my parent is in New York)? What should I do to document/prepare for this likely scenario since many LBD patients have aggressive moments?
 


Katie from NH
A: Answered by Shana Siegel, Esq., CELA

This should not be an issue with licensed caretakers/agencies as they are trained and prepared for this issue. However, you should be aware that a person who has been declared incapacitated by a court cannot be held liable for their actions. 

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Q:

My mother remarried after my father passed away. My mother's health has steadily declined and she has been diagnosed with dementia. My stepfather has cared for her in his home with the help of home health care providers over the last 2-3 years. He has recently, within the last 30 days, placed her in a nursing home. While all of us children have visited mom, my sister has been the primary person that has visited the most and kept up with mom's health care because she is the closest sibling near our mom and lives in the same state. Prior to placing mom in the nursing home, we children expressed our concern over our stepfather visiting mom on a regular basis as he has a history of not visiting when she has been placed in a hospital. We also expressed our wish for mom to be placed in a nursing home near where my sister lives. Our stepfather seemed open to the idea; however, when it came time for her to go into the nursing home, he would not allow her to move. After placing my mom in the nursing home, our stepfather sent us a letter stating that he has found another woman and he was going to another state to pick her up and bring her back to live in his house. He has been gone from the state since he placed mom in the nursing home and therefore has not visited her at all in the last 30 days. We have continued to request that our mom be allowed to move but have been denied by our stepfather. We feel that mom has been abandoned and want to see what actions we can take to move mom down near my sister where she can visit on a regular basis. We were told by our stepfather that mom and he have kept their money separate during their marriage and that he is using mom’s money to pay for the nursing home. Our stepfather insisted upon a prenuptial agreement to protect his assets. She doesn't have a lot of money and we estimate the nursing home will use up all her money within a few years when she will be placed on Medicaid. None of us have any interest in mom’s money, we just want her to get the best care. What actions we might be able to take (guardianship, etc.) in order to move mom to near my sister’s home and the probability that we could prevail in this action. Thank you for your assistance.

 


Ken from FL
A: Answered by Shana Siegel, Esq., CELA

I would file for guardianship and since your stepfather is cohabiting with another woman I believe you have a strong likelihood of success.

 

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Q:

My father has been in an assisted living facility for 3 years. He has Alzheimer’s and is currently in the second phase of care. I have monetary POA; the medical POA is held by another family member of his choice. He has unlimited LTC and his bills have been paid fully on his behalf by me. When he was admitted to assisted living, his girlfriend signed as a responsible party. She has now told the facility she no longer wants that responsibility and the assisted living has told me that I have to sign it in order to continue his residency there. "In order for your father to continue his stay here we are required to have a new responsible party appointed in writing. My understanding [is] that you maintain his Long Term Care benefits and are currently financially responsible for him. We need to have you sign an updated residency agreement by the end of October. Per the state of TX, every resident is required to have a responsible party or have one appointed to him by the courts." Is this true? Do I have to sign this contract making me the financially responsible party? What is the best course for me to take?

 


Rick from TX
A: Answered by Shana Siegel, Esq., CELA

I would sign as POA, adding the word POA after your name. Check to make sure the contract only makes responsible party pay from the resident's assets, not your own.  

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Q:

My mom owns a home in Tucson. She is moving in with me in Colorado. She has no equity in her home and the housing market stinks. She wants to just walk away and let the bank foreclose on her home. Should we try and get someone to purchase the home, just take over the payments? I spent some time with the SSI persons and know that her SSI can not be garnished, is that correct? She got caught in a scam and has lost everything including a $50,000 credit card bill. I am trying to work with them to remove part of that debt and then make a 5-year no interest plan with them. She has a military pension from my deceased father and I was told that can’t be garnished either. Are we are heading in the right direction?  


Robbin from CO
A: Answered by Shana Siegel, Esq., CELA

I would speak to the bank holding the mortgage about a short sale or other options. 

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Q:

I am caretaker and legal guardian for my mother. I have lived with her and my dad in their home since 1982 and have taken care of their health needs and other necessities. My Mom was diagnosed with dementia in 2007. My dad was diagnosed with cancer in 2010 and passed away in September 2011. My Mom's application for Medicaid was just recently approved and we are in the process of choosing a state program to help with care. I also have a nephew who lives with us who has a developmental disability. His mother (my sister) also is disabled and lives in a group home. With the program we are looking into my mother will have a spend down/cost share, which she will have to pay monthly. My first question is, since she will have this cost share, do I need to let the courts know this and do I have to legally get permission from the courts to be able to pay this cost share out of her account? My second question is, if something were to happen to my mom in the future, whether she needs to go to a nursing home or if she passes away, can my nephew and I continue to live in the house? Will I have to re-pay Medicaid for the funds that will be provided from the state program we have signed up for?

 


Geralyn from WI
A: Answered by Shana Siegel, Esq., CELA

You should not need court approval to pay her bills. However you should consult a local certified elder law attorney because you have several options to protect the home. 

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Q:

I was told by a FL diversion program provider who coordinates home-based services that I could sign my father's Medicaid application as the "authorized/designated representative" (he has dementia) without a POA. Is this correct? Also, my name is on my father's bank account as co-owner (I can close the account, transfer money, etc. without his permission). How does Medicaid look at this? Can I write checks without providing rationale to Medicaid since it is "my" account, too? Is it viewed that all the cash is his? There is 8K in the account. I have been notified by Medicaid that he must spend down to 2K. I will put 4K in a Trust for burial expenses. I do not want to "waste" the remaining 2K on non-essentials—any ideas on how to manage this? Medicaid gave us 6 business days to spend down. I faxed them a letter on the 2nd day informing them "he needs help getting info." Will they give us a reprieve on due date? Thank you for your service and for answering all my questions. 


Joanne from FL
A: Answered by Shana Siegel, Esq., CELA

Medicaid considers those funds as all his so they will have to be spent on his needs. Spend down must be completed by last day of month in order to be eligible for following month. While the agency may be flexible with paper work they can't be on spend down.

 

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Q:

My sister has POA for my mother in New York State. There are four other sibings. Some of us have asked for a record of disbursements of my mother's funds. We are told that in NYS POAs are not required to provide that information to siblings. We now understand there has been a reverse mortgage taken out on our mother's home. Is there anything we can do? 


Cate from VT
A: Answered by Shana Siegel, Esq., CELA

Assuming that your mother is incapacitated and you have reason to believe that the POA is acting inappropriately, then I would advise her that if she does not provide you with information showing that she is acting in good faith that you will initiate a guardianship.
 

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Q:

My Mom passed away 7/31/11 in a nursing home. Her Medicaid had not been approved before she passed. We just received notice that her Medicaid was approved. We received a bill from the nursing home for over $15,000, stating this was the balance after Medicaid paid. Are my sister and I legally bound to pay the $15,000.00. Does the nursing home have to show us some kind of document we signed that would make us liable for this bill? 


Fran from NY
A: Answered by Shana Siegel, Esq., CELA

You should only be liable if you either signed the nursing home contract assuming liability or if you spent your mother's income, which was owed to the facility or if she made gifts to you, which delayed her Medicaid eligibility. 

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Q:

My 90-year-old grandmother is being discharged from the hospital with hospice. My 55-year-old aunt has DPOA so grandmother is going to live with her. Four other siblings and all grandchildren are fearful because this caretaker is a hoarder and her home is not fit for her mother. Do we have any recourse? 


Sharyn from IL
A: Answered by Shana Siegel, Esq., CELA

If she is unsafe, then you could call adult protective services. If she is incapacitated, you might also be able to initiate guardianship or other protective action. 

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Q:

We were informed yesterday that my wife's 76-year-old brother has been comatose in an ICU in Moore County, NC for 4 weeks. We live in California. Family members are not aware of a Power of Attorney or Health Care Directive being in place. His medical condition and outlook are very poor. Is there is a time-sensitive process for establishing emergency guardianship so that his affairs can be handled (household bills and other ongoing obligations) and access to safe deposit boxes, etc., to determine if a will exists? 


Bob from CA
A: Answered by Shana Siegel, Esq., CELA

Yes, you can petition for an emergency guardianship or temporary guardianship, pending a full hearing. This would require a North Carolina action.  

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Q:

My husband has been battling Parkinson’s disease for over 14 years. He was recently diagnosed with Alzheimer’s and informed that he is no longer able to drive himself. He just turned 65. I work full time outside the home for the VA. Our son is a PA state trooper and would like to put in for a hardship transfer to be closer to home. I was wondering if you could help me with the proper way to write this letter. Thank you. 


Catherine from PA
A: Answered by Shana Siegel, Esq., CELA

I am not aware of any special format that he must provide. I believe that he should just explain the situation simply and ask for the transfer due to hardship. 

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Q:

An elderly relative with dementia has been living in a nursing home facility for three years and recently spent a week in the hospital because of a UTI and related issues. Can he be evicted from the nursing home? 


Suzette from FL
A: Answered by Shana Siegel, Esq., CELA

Yes, unless he paid to have his bed held. If he is a Medicaid recipient, Medicaid will pay to hold a bed for 8 days in Florida, I believe. 

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Q:

Can an elderly person living in South Carolina have a financial POA who lives in another state? 


Ginny from MD
A: Answered by Shana Siegel, Esq., CELA

Absolutely. It is very common to have out of state agents these days as most transactions can be handled electronically. 

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Q:

I have lived with my mom for 9-1/2 years with my two kids. A year ago she was diagnosed with mild dementia. Shortly after I lost my job and my mom has been helping me financially. I went back to school with my mom’s help to become a CNA, but job offers have been slim. In the last few months, my siblings have been accusing me of stealing money and credit card fraud. Three weeks ago my mom was hospitalized for 2 days. That following Monday, my brother came from Florida to Georgia and took her for two weeks. At that point, he informed me he has a POA and that she is coming to live with him. My mother told me in front of him that she didn't sign it, but he made her go back to Florida with him. He has seen removed my mom’s clothes and furniture and told me that he wants me out of the house so he can sell it. He has shut off her home phone and will not let me communicate with her. He has been sending me harassing texts about putting me in jail for theft. Every week since he took her, he has been driving up on Mondays to remove her stuff and harass me. I just started working and with the help of others have managed to put the utilities in my name. I also have hired a lawyer. I'm trying to get a temporary order of protection against him, but because he lives In Florida, the court in Georgia said I have to go to Florida to get it. Can you offer any suggestions for my situation? 


Jane from GA
A: Answered by Shana Siegel, Esq., CELA

The question is, what is your goal? If you believe that your mother does not want to be in Florida and that she did not sign a POA, then you could initiate a guardianship. However, this will be costly and the fact that your mother has been providing you substantial financial assistance may work against you. 

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Q:

My mother had been living with me for a few years before she passed away last month, and I had claimed her on my taxes. She and her husband have been living in different states and he did not support her financially. They felt they were too old to divorce, so they just separated. My mother was diagnosed with cancer around August of 2011 and was still taken care of at my home. I provided all transportation and means for her, assisted her in all of her needs financially and personally. Her husband had nothing to do with her nor did he even attempt to reconcile with her or help with her expenses. Before my mother went into hospice care, I wrote checks with her permission and guidance to the funeral home and for her other funeral expenses. I did this as power of attorney and guardian, which I assumed was taken over once she was disabled and living with me and I claimed her. After my mother passed, her husband claimed her life insurance and had all of the checks that were suppose to pay for her expenses including her funeral, canceled. He has no plans on paying them, he just wants to gain control of her estate and insurance claim for himself, not her bills. What should I do? 


Autumn from AR
A: Answered by Shana Siegel, Esq., CELA

It is not clear what authority he had to cancel the checks, presumably none. The question is whether you are her executor under her will or he is. Whoever is appointed will have to pay the funeral and other debts out of her estate. 

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Q:

My mother passed away in February 2012. She had a home loan, a credit card bill and another (unsecured) loan. Her home has now sold. The bank that had the house loan was at the closing, so naturally, they were paid. My question is: Are we responsible for paying off the credit card and the other loan? I cannot seem to get a straight answer out of anyone. We did not go through probate as there was no need in our state under our circumstances. There was money left after the sale of the home. If we are responsible, do we wait for the bank to contact us? How should this be handled? 


Carol from NY
A: Answered by Shana Siegel, Esq., CELA

The other two creditors have a right to seek payment from the remaining estate assets. You may wait for them to do so or you may want to offer to negotiate the debt. 

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Q:

My parents sold the property that my trailer is on. I've been living there, and now they want me to move. Can they make me? If so, how might they do it? 


Mary from AR
A: Answered by Shana Siegel, Esq., CELA

If you own the trailer but not the land, then they can require you to move the trailer. If you do not own the trailer, then they can simply evict you. If you do not comply with either of these requests, then they can bring legal action to force you to do so, although the court will likely give you a reasonable amount of time to move. 

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Q:

My two siblings abused my father prior to his passing last November. They have controlled his considerable estate and now it seems they are poised to deny me my rightful inheritance. I receive a small Social Security check and cannot afford a lawyer. I've heard that there are advocate organizations that may be able to answer some questions concerning elder law issues. I would greatly appreciate any help in this matter. I live approximately 50 miles south of Los Angeles. Any recommendations would be appreciated. Thanks so much. 


Bob from CA
A: Answered by Shana Siegel, Esq., CELA

I would try your local legal services organization. Alternatively, one of the law schools in your area may have a clinic that deals with these issues as well. 

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Q:

My 77 year old father has been on chemo for his MS for almost a year. During this time, he has been showing symptoms of paranoia, manic depression, bi-polar disorder. My sister and I have alerted his chemo doctor to this, but she hasn't done anything about it except ignore our phone calls. We've spoken to other staff members, but nothing from the doctor herself. This isn't getting better and my poor mom is living a nightmare. My father knows we've spoken to his doctor's staff about this because we don't want this to be a surprise since he already has paranoia. He stated he talked to the doctor already and cleared things up, but why wouldn't the doctor have called the family? Isn’t it in his best interest that she call us? Doesn't she realize the legal issues here if he does something to himself or someone else? 


Paulette from MA
A: Answered by Shana Siegel, Esq., CELA

The physician cannot speak with you unless your father has authorized her to do so. Only your father has the legal authority to make his own medical decisions unless and until the doctor thinks your dad cannot make his own medical decisions. 

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Q:

I have had guardianship of my mother for 5 years. She passed away last week. The attorney handling my mom's guardianship said I need to close out the guardianship, which I am in the process of doing. The attorney also said my mom's estate will have to go into probate. She was still married to my dad for 68 years. Why does the money have to go into probate with the joint accounts and accounts that the court made me put into my mom's name only? I thought the money would all transfer to my dad. 


Teresa from FL
A: Answered by Shana Siegel, Esq., CELA

Any assets that do not pass to a joint tenant or to a POD beneficiary, i.e. those held solely by your mother as part of the guardianship, must pass through probate. However it will presumably still go to your dad under her will. 

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Q:

My mom has been in rehab for 90 days. They have been asking about her last two months of bank statements, they say, for Medicaid, but I went with her to the doctor yesterday and they said she already has Medicaid and Medicare. I want her home and they want release her. Do I need to provide them with these ban statements? 


Shavella from FL
A: Answered by Shana Siegel, Esq., CELA

If you want her to remain there on Medicaid, then you do need to give them the statements.  

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Q:

About two years ago my mother-in-law was diagnosed with moderate dementia. At that time she was having problems with her finances and she gave my husband POA so he could pay her bills. The only income she has is social security. About 6 months later she began forgetting to eat and was losing weight, leaving the stove on, couldn't remember how to use the microwave. My husband is an only child and our home is a tri-level and not handicap friendly. She owned a 1979 mobile home and a 1995 vehicle. At that time my husband applied for the Passport program (Ohio) in which medicaid pays for home care. She started out with 3 days a week of home care paid for by medicaid and my husband cared for her the rest of the time taking safety measures as shut off on stove, locks on the thermostats, life alert, etc. She could still dress herself and get around with a cane. At that time she signed the title to the mobile home and car over to my husband, but was still living in it and paying the lot rent and utilities out of her monthly income. Over the last year and a half her home care has increased to 7 days a week 3hrs in the morning and 2hrs in the evening to cover meals and meds and help her bathe. My husband has had health problems (heart and stroke). She is 89, he is 68. She recently fell and broke 3 ribs, 1 of which punctured a lung. She was placed in a nursing home in skilled nursing/rehab paid for by Medicare for the first 20 days. September 3, 2012 was her last day in rehab because she was refusing the therapy and not showing any marked improvement. They have said that the trauma of the fall has caused progression of the dementia and it has affected her balance, she cannot stand or walk with out assistance. Passport said due to budget restrictions they could not extend her home care hours and the nursing home said she could not safely go home w/o 24 hr care and supervision. They said that they could move her into full time nursing home care since she was already approved for Medicaid without a problem. That has been done. The question is since the title to the mobile home has been in my husband’s name for the last year and a half is there a timeframe that has to be met, could medicaid say that they want the mobile home? We need to sell it because we cannot afford to pay the lot rent for it to sit there empty and we know they will be taking her social security income to pay for part of the nursing home care. We had also sold the car about a year ago to help pay for her living expenses. We have two potential buyers for they mobile home. What can we do within the law about selling it? 


Ruth from OH
A: Answered by Shana Siegel, Esq., CELA

If your husband has been determined to be Social Security disabled, then he can keep the funds from the sale without penalty. Otherwise, I would suggest that you use the proceeds to prepay for your mother-in-law's funeral costs and any other items she might need to make her comfortable in the facility. You must spend the money on her the same month you sell it. 

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Q:

It appears my father-in-law is headed to a nursing home fairly soon. He was born in England, has worked and lived in the US for over 40 years. My husband was born in Canada and has been in the US since a baby. His stepmother called this morning needing my husband's Green Card number and a variety of other personal information. She said it was needed for my father-in-law to enter the nursing home. Why would my husband’s information be needed? 


Susan from FL
A: Answered by Shana Siegel, Esq., CELA

Medicaid is limited to US citizens and a very narrow group of resident aliens. My only thought is that they did not have documentation of permanent legal resident status for your father-in-law so they are trying to use your husband's information to provide additional support that his father meets the criteria.  

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Q:

If my parent was hospitalized and confused, do I have the legal right to make decisions for her without a POA? Also, if she were to be discharged from the hospital, can I legally refuse to take her home upon discharge? 


Kelly from MI
A: Answered by Shana Siegel, Esq., CELA

Depending on your state law, you may have the right to make certain medical decisions. You might be able to refuse an unsafe discharge on her behalf. You can refuse to take her to your home or to provide care for her yourself.  

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Q:

My father will be released from SNF in two weeks. He has both Medicare and MediCal (CA Medicaid). He still needs 24 hours watch; he cannot walk on his own, has a foley catheter and has some dementia. He can barely walk with a walker, but cannot take care of his catheter on his own. We will not be able to take care of him financially or give him 24-hour care. The SNF that he is in now is great and they have long term facility, but no availability. Our (my father and I) preference is for him to stay in the facility as a longterm patient. What are my legal rights for not accepting the discharge and demand that he stay in the SNF as a longterm resident? What are my steps to accomplish this? He is comfortable there (he has been in the SNF for 9 weeks and has adjusted well with the nurses, physical therapy etc.) Please advise and thank you. 


Dan from CA
A: Answered by Shana Siegel, Esq., CELA

They are required to provide a safe discharge plan and I am sure that there are other facilities that they can help find. They are not required to keep him unless there is no other safe, appropriate option. 

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Q:

My father has been placed in a secured unit nursing home by our stepmom. We know daddy has a will and it all goes to stepmom. No problem, we don't need or want ANY of their assets. My siblings and I just want Daddy out. He's always expressed he never wanted to be in a nursing home. He has been deemed incompetent, but the bitter truth is he is being drugged and makes clear sense if you know him. He never made my stepmom his POA and she said he didn't, but claimed he didn't have one. My Dad just told me that he made my brother his POA. My lawyer is trying to force her to produce a copy of the will. We are in a battle over guardianship. If she wins, Daddy’s life is over—she's leaving him in there. If we can prove my brother is his POA, can we get daddy out and take him home in another state to be with his kids? He wants to live with us as opposed to living in that pee hole. He really wants to go home, but she has stated she can't care for him (she's 16 yrs. his senior and they have been married 36 yrs.) Judge/G.A.L. are on her side. How do we force her to produce copy of Dad’s will? (They live in VA.) 


Pat from IN
A: Answered by Shana Siegel, Esq., CELA

You need to focus on the guardianship and fight to be appointed as his guardian. Consider bringing in a geriatric care manager as an expert. 

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Q:

My mother is 84 and her health is going downhill. She owns a mobile home in a park and we would like to take it out of her name and put it in my sister’s name. Our concern is that if she were to have to go into a nursing home in the future we don't want her to lose this asset. Is there any legal reason we can't do this? 


Sue from NY
A: Answered by Shana Siegel, Esq., CELA

If your mother needs Medicaid within five years of making this gift, it could preclude her eligibility. Therefore, you should see a local attorney before you make any transfer.  

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Q:

Dad is in a care facility and I am his guardian. His Social Security checks come to my house and have both my name and his as the payees. I am required by the care facility to deposit the checks and turn over the entire amount to them in the form of a money order. What are the tax ramifications for me? And no one seems to know if these checks are retirement benefits or disability checks (my father lost a leg in an accident some years ago and he suffered a stroke 2 years ago and he can no longer communicate effectively). 


Peggy from CA
A: Answered by Shana Siegel, Esq., CELA

There are no tax ramifications because you are only receiving them on his behalf, as his agent. You could have the checks paid directly to the facility for ease. 

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Q:

 Our family does not get along. In 2005, before my dad passed, my mother signed a trust naming my sister Mary the trustee. My sisters Gloria and Janet were upset by this and eventually a new lawyer was hired, and a bank was named trustee. In 2009, sister Gloria, who is my mother's healthcare POA, placed my mother in a facility. Some of us were not happy about this, but because we still had access to visit my mother, we helped mom adjust and made it work. Gloria and Janet have tried in various and sometimes devious ways to limit our contact with mom, but the trustee had maintained that it was in mom's best interests to be in a facility. Last week, concerned that my mother will outlive her funds, the trustee had informed the family that costs must be cut. We are currently paying $8000 nursing home costs and $10,000 for private caregivers. Gloria has decided that my mother should be moved to Janet's home, eliminating the nursing home cost. The trustee has said they will only pay for caregivers and medical costs while mom is in Janet's home. Any other costs will be the responsibility of the family. The biggest problem is that Janet will limit our visitation to our mother, and if we upset Janet, she possibly will not let us see mom at all. If she demands some sort of compensation for something the bank will not reimburse her for, we surely will not see mom again. What can we do to protect our rights to be with our mom?


Cathy from IL
A: Answered by Shana Siegel, Esq., CELA

First of all, it sounds like an enormous amount of money to pay for private caregivers in a facility setting. I would recommend you get an experienced geriatric care manager involved who can make care recommendations and may be able to act as a mediator between the family members.  

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Q:

My father is 77 years old and a widower. He signed a prenuptial agreement prior to marrying his wife of over 20 years, as she owned her house outright and had real estate and other investments. Upon her death, she left everything, including the home she shared with my father, to her daughter, an only child. Her wishes however, were that my father continue to live in the house. It’s been almost 4 years since her passing and now her daughter wants to evict my father from the home. She keeps telling everyone in the family how he is living there "rent-free." I find this pathetic to say the least. To make things worse, he was recently in a car accident and is currently in the hospital. The hospital wants to release him to go home, but my father’s stepdaughter will not allow him to return. She doesn't reside at this home as she owns her own condo in a nearby city. Does my father have any legal recourse? 


Lisa from CA
A: Answered by Shana Siegel, Esq., CELA

Unfortunately, probably not. He might have had recourse upon his wife's death to elect against the will, but at this point he has waived any rights he had. I would suggest you consult a local attorney to see if there might be any state law that might be helpful. 

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Q:

I have my mother in a nursing home in NC. I'm not very happy with the care. I was told they do not give one-on-one care and they may be looking to discharge her. Can they say that by law? What are the reasons by law to be kicked out of a facility in NC? 


Henry from NC
A: Answered by Shana Siegel, Esq., CELA

 Federal law limits reasons for discharge and includes notice requirements. One of the legitimate reasons is if the resident's medical needs cannot be met in the facility.

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Q:

My question is whether a retirement home (assisted living facility and not a nursing home) can prevent a child of one of its residents from visiting his/her parents. Also can that facility's personnel intercept telephone calls and prevent that child from calling his/her parents? If so, under what circumstances? Is there also a difference if the parent is dying or about to die? Are there any laws or legal cases on this subject? If there are, please included them in your response. 


Curtis from HI
A: Answered by Shana Siegel, Esq., CELA

Any visitors or callers can only be restricted if requested by the resident or the resident's legal guardian or in limited situations if the facility believes the individual is disruptive or dangerous. 

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Q:

My mother is a full time caregiver to her 93 year old aunt staying in my mom's home for the past 3.5 years. Is it legal for my mom to bill her aunt for 24/7 care to be paid from the aunt's savings prior to entering into nursing home? 


Melonie from IL
A: Answered by Shana Siegel, Esq., CELA

It is not that it is illegal. The problem is that if your aunt requires Medicaid, then it could be considered an inappropriate transfer and result in penalty. There are provisions for payment of caretakers including family members, but there are specific rules such as written agreement, documented hours, etc., and these can vary by state. The terms of her POA, if she has one, may also be important. It is essential that your mother seek advice from a knowledgeable elder law attorney before she takes payment for her services. 

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Q:

My dad 88 is in a skilled nursing facility for physical and occupational therapy after a hospital stay for a fall (Parkinson's). He is capable of transfer from a wheelchair to chair and bed. He also uses walker with assistance. I want to bring him home and take him to the local outpatient therapy center instead of staying at skilled nursing center. The place is full of many dementia patients and he does not like it. Also, he has a neurologist for his Parkinson's, but the house doctor is trying to change his medication without consulting with the neurologist. They say that they are in charge of when he is released. How do I change that? (Not on Medicaid.) 


Terry from OH
A: Answered by Shana Siegel, Esq., CELA

I would suggest you work with the social worker to see if you can implement an appropriate and safe discharge plan. With some additional support, you may be able to convince them that he is ok for discharge. Of course, your father can leave against medical advice, but you should be aware that you are likely to get better Medicare coverage at the facility. 

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Q:

My Grandmother had dementia and signed a mortgage with BOA. Since she passed away, it’s been in foreclosure. My father and mother went with her to closing and they're deaf and illiterate. No interpreters were provided (ADA law violated?). Would this fall under unclean hands? Did the bank violate her rights? Would I need to prove her dementia/incompetency with her physician's note in court? 


June from FL
A: Answered by Shana Siegel, Esq., CELA

I am not sure that any of this really matters since she is deceased. Someone needs to be appointed as representative for her estate and then see if there is any value to be recouped after the property is sold and the mortgage is paid. I would suggest you contact a local elder law attorney.  

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Q:

I currently have POA for my mother. She is in an Alzheimer’s care center. I do not want POA any longer and do not want to be responsible for her financials. At this time I am on her checking account and have been taking care of her for the past 18 months. I am tired...her financials are at the point of needing Maine Care. I am do not know whom to turn it over to or what to do, or how to end my POA. My sister is second on the POA form and she has no desire to be any part of it. Please help. 


Diane from ME
A: Answered by Shana Siegel, Esq., CELA

I would talk to the facility about working together to get your mother Medicaid or, if she has some assets left, you could hire an attorney to assist you. Once your mother is on Medicaid, there is really nothing for you to do as POA. Her income can go directly to the facility. 

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Q:

I have durable power of attorney and I have been living with my mother and have been her caregiver for the last three years. She has Parkinson’s and dementia and she needs to go into nursing home soon. (My father and brother are deceased.) She has no money (she lives on $1300 a month Social Security), but owns her home outright. She has a living trust with me as beneficiary. If she goes into a nursing home, will Medicare go after her home for repayment even though I’ve lived with her for last three years? Can I transfer property into my name before she goes into nursing home? She wanted me to inherit her home. Thank you for your time. 


Mark from CA
A: Answered by Shana Siegel, Esq., CELA

There is a Medicaid exception, which should allow the home to be transferred to you as her caregiver. Hopefully your POA gives you the power to make gifts to yourself because, if not, then you would have to petition the court to appoint you as guardian and approve the gift. I suggest you contact a CA certified elder law attorney. 

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Q:

My grandmother is in a nursing home in the state of Virginia and has Medicaid at this time. After 6 months of living there, Social Services told us that she must put her home up for sale or they would take her Medicaid away. We placed the home on the market and had a Comparative Market Analysis done of her home and the surrounding properties. Her real estate agent submitted the CMA to Social Services as well as a letter stating that, in his opinion, due to the market and condition of the home, it was unlikely to sell within the next 90 days. How long do we have to keep it for sale? Is it indefinitely? Do we have to have it for sale with an agent for a certain number of days or can we just place our own advertisement in a local newspaper? I would rather keep the home and pay the lien that Medicaid will place on it at the time of her death than sell it and pay the nursing home the "private pay" fee each month. As you know, the Medicaid rate is considerably cheaper than the private pay rate. Also, my grandmother continually states that she intends to go back home one day, however the family knows that there is almost zero chance that will happen due to her chronic conditions and lack of mobility. If we submit a letter to Social Services that states her intention to return home, is that valid/acceptable? Or do we have to have proof or medical evidence that she may be able to return home in the future? 


Robin from VA
A: Answered by Shana Siegel, Esq., CELA

This is really a matter of state law. Some states accept a subjective intention, but others do not. If Virginia does not accept subjective intent, then the property would need to be listed with a realtor until it is sold. I suggest you contact a Virginia certified elder law attorney. 

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Q:

My grandfather who lives in South Carolina had a stroke, and my uncle who has HIV/AIDS wants to move him to North Carolina to live with him and wants guardianship of him. Can he do this? What can we do? 


Jennifer from SC
A: Answered by Shana Siegel, Esq., CELA

He can bring a guardianship action. You have the right to oppose it. Depending on state law, he might be required to first bring the action in South Carolina and then petition to move your grandfather to North Carolina.

 

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Q:

If someone signs a DPOA and a pre-need guardian able to make decisions and then become incapable and the person who is the DPOA becomes incapable, how do you appoint someone else as decision maker? 


Cathy from FL
A: Answered by Shana Siegel, Esq., CELA

Generally you cannot without a court action. This is why it is always best to appoint an alternate in your documents.

 

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Q:

My father lives in Montana. Four of his children (myself included) live in Spokane, WA. Dad suffered a stroke Thursday and is hospitalized. His doctors say he will need at least 3 hours of physical therapy a day for both speech and motor skills. My brothers and sisters and I want to have him treated in a skilled nursing facility in Spokane so we can help him and visit him. He has Medicare and a supplemental insurance policy. There is no one in MT to help him. Can we have him brought to Spokane for treatment? Dad wants to come here.  


Kathie from WA
A: Answered by Shana Siegel, Esq., CELA

You can although it may be difficult if your father is in a Medicare managed care plan. If he is in traditional Medicare, he should be able to go to Spokane. You will have to act as the middleman between the hospital and the facility in Spokane.  

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Q:

My 30 year old son who is a mean drunk has been verbally and physically abusive to me and has also destroyed many of my prized home furnishings, as well as threatening to kill me on numerous occasions. Can I have him evicted by the Police .. immediately? I cannot take the constant, ongoing stress and physical abuse. 


Mary from KS
A: Answered by Shana Siegel, Esq., CELA

Parentgiving cannot respond to emergency situations. If you believe you or someone you know is in danger, call 911 or contact adult protective services in your area. 

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Q:

My dad is 65 and was diagnosed with dementia seven years ago. He has progressively gotten worse and is in need of long term care. My mom did not plan for this and does not qualify for Medicaid. She has several annuities and their net worth is almost half million. She is afraid that within 3 years all of her resources will be depleted. What can she do to minimize the cost and the worry of long term care? Is it possible to purchase a policy now? 


Byron from OH
A: Answered by Shana Siegel, Esq., CELA

Unfortunately, her options are going to be more limited now. Your father cannot get a LTC policy now. Your mother should be entitled to preserve at least $120,000 plus their home. She may be able to preserve more depending on the terms of the annuities, but she should consult a certified elder law attorney in her area ASAP. 

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Q:

After my dad passed away in 2011 my mom was diagnosed with Alzheimer’s disease. At first my sibling made a small effort to help me with all the many things that had to get done, but after a few weeks it became obvious that she (my sister) was only trying to access my parents’ money. With my father gone, my sister felt it was the perfect opportunity to grab their estate. My mom has advanced Alzheimer’s and I've had to take over all arrangements for her healthcare, paying bills, setting her up in an assisted living facility. My sister never visits her or even calls. I've been appointed Guardian of my mom for her person and finances. My question is this: Over the years my dad had helped out my sister, after she dropped out of school and tried to avoid paying off student loans. My dad paid off about $11,000 for her loans. Right after my dad's death, my sister headed to the bank with a copy of his death certificate and was able to cash out part of an account that named her as a beneficary. (I was named as beneficary on a different account, but thought it was inappropriate to start cashing out CDs and IRAs a week after dad's death, with a sick mom to be taken care of). All together, my sister received/took about $63,000. I want to do the right thing, which is to take care of her during her life; however, I would like to receive the same amount that my sister took (prior to the rest of the estate being divided up when my mom passes away). Since my mom has dementia I certainly can't ask her to change her will (which was written 15 years ago) How can I make sure that I receive the $63,000? I've spent hundreds of hours taking care of my mom and doing the paperwork for my dad's estate, and I've spent thousands of dollars out of my own pocket with travelling to see mom, taking her out to lunch and dinner, buying her clothes, etc., whereas my sister hasn't lifted a finger for mom or spent anything to help her. 


Chica from NJ
A: Answered by Shana Siegel, Esq., CELA

If there are assets that belonged solely to your father and named you as beneficiary, then you would generally have the right to receive them. However, you must be very careful with regard to any assets that were held jointly or belong to your mother. If you access them, then this could make your mother ineligible for Medicaid for five years after the transfer. You may be able to receive compensation for some of your services, for instance commissions for acting as Executrix. I would consult a local certified elder law attorney before you do so. 

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Q:

My dad’s wife of 8 years (they married when he was 78) was supposed to be my mom’s best friend when she was living. We are cordial, but she does not really like me because I spoke up about my feelings about the marriage situation. My dad has been in the hospital more than once and she never calls me to inform me. I always get a call from a relative in the family. Now he has signs of memory loss and she has filed to have full guardianship over him. I believe this is just another way to keep me (possibly) out of his life if she chooses. What are my options? Please help as I do not want her to have guardianship as she is already his wife. 


Pamela
A: Answered by Shana Siegel, Esq., CELA

You can oppose the guardianship and ask to be appointed. Many courts will appoint a spouse unless there is a strong reason not to do so. However, you should certainly advise the court of the communication issues. Then even if the court appoints her, it can include in the order a requirement that she keep you informed, allow access to your father, etc. 

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Q:

My step-grandfather has progressive Alzheimer’s. He is now at the point where he is blowing up at his neighbors and threatening salesman who come to the door. He recently had an altercation with a police officer, assaulting the officer. My step-grandmother is afraid that he will wake up one night thinking that she is robber or something and kill her. My grandmother does not work and stays at home babysitting her grandchildren—she is worried for their safety, too. The doctors have done nothing about his being violent. Of the two of them, he brings in the income with retirement and social security. She brings in a small amount of social security and would not make it if he was put in a home. Our family could use some advice as to what we can do to keep him from hurting someone or himself and to keep grandma from losing everything in the process. 


Amanda from IN
A: Answered by Shana Siegel, Esq., CELA

Your grandmother should not have to be afraid for her safety. If your grandfather's doctor will not listen, then you need to find a new doctor. If things get urgent, she can always take him to an emergency room. They can keep your grandfather if he is a danger to himself or others and hopefully stabilize him with medication. If he can no longer live at home and goes on Medicaid, your grandmother would still be entitled to some (if not all) of his income. I would strongly urge your family to find a certified elder law attorney locally to guide you. 

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Q:

About two years ago my mother was diagnosed with dementia and was unable to stay home by herself. Someone always has to help her with daily routine. My sister, her boyfriend and son moved in to help take care of her. My mother is now 87 and still pays all of the bills in her home, getting no financial help from my sister and boyfriend that moved in. Recently my sister mentioned in conversation that since she had been living there for at least two years she would be able to file for "Life Tenancy." (My brother is POA and had been for years prior to my mother being diagnosed with dementia.) My question is, Is this even possible? My mother has a living will and on that it states that if something should happen to her, the property be sold and split between all children. I have four other siblings who feel as though this sister has been taking advantage of the situation and is trying to take control of my mother’s property.  


Raylle from RI
A: Answered by Shana Siegel, Esq., CELA

I believe your sister may be referring to a Medicaid rule, which states that a home may be transferred without penalty to a child caretaker who lives in the home for two years thereby delaying the need for institutional care. However, this is not something your sister could do on her own—either your mother (or the POA) would have to sign a new deed or it would take court action.
 

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Q:

For the past two years I have been caring for my father at night. We have paid caregivers through out the day. My 6 siblings refuse to help. I want to sue each of them for the time that I am caring for my father. I have been keeping a record of the time I am a caregiver as well as the time I visit or take him out. His will was done a few years ago and everything is divided equally. So therefore my question is can I sue them for the hours spent? Normally I would never think of doing this, but I am seeing more and more how selfish they are and I have basically given up my life while they are all vacationing and enjoying theirs. And if so what type of attorney do I need? 


Barbara from FL
A: Answered by Shana Siegel, Esq., CELA

It must be incredibly frustrating to have your siblings turn their back on you and your father. Unfortunately, they have no legal duty to care for your father so there is no ground for a lawsuit. However, you may be able to get compensation for the care you provide. I would speak with a local elder law attorney. 

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Q:

About 8 months ago I moved into my father’s home to help take care of him. He is 84 years old. I am on disability and not in good health myself. My dad is currently in the hospital. He might have to go into a nursing home because he is now just too much for me to handle. My question is, can the nursing home make me leave the house so that it can be sold to pay for his nursing home stay? His home is still in his name. Can they make me leave? He is on Medicare and has a secondary insurance. 


Janet from IN
A: Answered by Shana Siegel, Esq., CELA

Normally the house would have to be sold before your father would be eligible for Medicaid coverage of his nursing home stay. However, there is a policy exception in the law, which allows for children who are disabled to remain in the home. In fact, your father would even be able to transfer the home to you without any Medicaid penalty, assuming you meet Social Security disability standards. I suggest you seek the services of a certified elder law attorney in your state.  

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Q:

I have been a caregiver in assisted living for about 15 years. I recently moved to a new area and found a job at a local 6-bed facility. There are 6 full assist residents, all incontinent, and caregivers are responsible for meds, all activities of daily living, cooking, cleaning, etc. The caregivers work in 24-hour shifts. It is my practice as a caregiver to toilet my incontinent residents every two hours to keep them clean and dry, but this is nearly impossible when working a 24-hour shift, sometimes for days in a row. The boss/owner insists that all residents are double diapered. This is one of many things happening there that are appalling to me as a caregiver and a human being. Unfortunately this is my livelihood at the moment. What can I do to make sure my boss is doing the right thing and my residents are getting the care they deserve? 


Layla from CA
A: Answered by Shana Siegel, Esq., CELA

First, I applaud you as a caregiver. It can be such a thankless and underpaid job. You have several options. I would call the ombudsman office as well as the licensing departments both for the facility and for the administrator. In California those are both governed by the Department of Social Services and they have local community care licensing offices. Contacting your legislator also can sometimes bring action. It sounds like there are also labor law violations so I would suggest you contact the local Labor Law Commission office. I know that it can be scary to take action against an employer, but there are protections to keep your employer from retaliating against you. 

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Q:

My oldest sister was in the process of getting guardianship of my mother. She already paid for her attorney. I decided to get guardianship, she said okay and withdrew her case. I got my own attorney and proceeded with the guardianship. Later, in process I received a bill from "my mom's attorney" and was told I had to pay it. Her attorney charged a lot and I can not afford to pay her. My mom does not have any money. Do I legally have to pay her? I did not sign anything or even know I had to pay her. 


Bobbie from TX
A: Answered by Ann Margaret Carrozza, Esq.

In the context of a guardianship proceeding, the court will typically appoint an attorney for the AIP (allegedly incapacitated person). This individual is paid by the ward's (your mother's) assets. If there are no available assets to pay this, you may make application to the court to have the legal fees reduced. Unfortunately, this will cause you to incur additional legal fees to make that application! In your position, I would reach out to the attorney, explain the situation and request a payment plan. 

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Q:

My Mom is 84 years old and widowed. She lives with my husband and me, and receives about $1,100/month from Social Security as her only income. She has no other assets of significance at all; her only savings are less than $3,000.00 and two life policies totaling less than $8,000.00. She does contribute to the household by paying the electric bill, but all her other funds are used solely for her welfare. She recently fell, resulting in a broken hip. Her recuperation has been blessedly good, though I do worry for her future health as it appears she has started to show signs of slight Alzheimer's (I would term it "senility" at this point rather than anything more serious). Physically, there is still recuperative work to do and she may need more physical therapy at some point. Would our assets be at risk (for lack of a better term) should she have to enter a nursing home or a rehab facility? I have been told by her caregivers that Medicaid would have paid for longer term care at home; all we can afford now is 4 hours once a week for a home health aid. I hesitate to apply for Medicaid for her as I am concerned as to whether our assets (my husband's and mine) would be at risk in any way. I have my mother's POA, which includes health and finances, so I am in a position to make all decisions necessary. As an aside, my brother is not directly involved in her care at all. His only contact is by phone and a visit once or twice a year. He does not financially contribute to her care. Where would you suggest I begin researching resources for services that my Mom may be able to afford? Thank you for any guidance. 


Michele from FL
A: Answered by Ann Margaret Carrozza, Esq.

I believe that your first call should be to a good geriatric care manager to learn about all of the long-term care options in your community. Adult children generally have no "third party" obligation to cover the costs of parents' care. I have, however, had several cases where a child unwittingly signed a third party guarantee at the time of a nursing home admission. My advice to you is not to sign such a guarantee. If you are asked to sign a so-called responsible party form wherein you are asked to make their assets available, you should sign this as power of attorney so you are not personally on the line. 

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Q:

My father-in-law was diagnosed with Alzheimer's almost 3 years ago. My mother-in-law has been in poor health also. Since their health started declining four years ago, my husband and I have taken care of them. We take them to the doctor appointments and make sure they get out to get their medicines. When something is wrong, we are the first ones they call. Their health has declined very fast in the past 6 months. In the last two months, my husband’s sisters want to step up to the plate. I found out that one sister is going behind our backs, taking them to a lawyer and trying to get them to sign papers to give her POA/guardianship of them. Being that I was the one taking care of them the whole time, is my husband legally able to petition the court to grant him POA/ guardianship and keep his sister from doing things behind our backs that they are not in their right mind to do? 


Kimberly from PA
A: Answered by Ann Margaret Carrozza, Esq.

Your in-laws have the right to give property and/or delegate authority to anyone they wish—provided they have the requisite legal capacity to do so. If your sister-in-law is pursuing a guardianship proceeding, your husband must be provided with notice of this. He would then be able to retain counsel and pursue a cross petition wherein he may agree that one or both of his parents need help, but that he and not his sister is the better candidate.

 

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Q:

My father has dementia, my mother died one week ago and my sister has power of attorney, which was done by her ex-husband three years ago without mother or my knowing. Now she wants sell house and put dad in a nursing home (she has already used his bank account for her own purchases). Can she do this without father’s understanding--he can signs papers on selling the house without understanding what he is doing. Right now he lives with a caregiver and I'm a 15-minute drive away. What I can do to stop my sister? 


Elena from WA
A: Answered by Ann Margaret Carrozza, Esq.

Your best option is to consider a guardianship proceeding. This is your forum to allege that your father does not have the legal capacity to protect his financial interests. He may or may not have had capacity to create the power of attorney three years ago. Your position should be that your sister is not using the power of attorney to act in his best interests. The court will evaluate medical evidence and will appoint a court evaluator to review everything that your sister has done. If it is determined that she has exceeded the scope of power granted and/or she is not acting in your father's best interests, the court can extinguish the power, reverse transfers made and appoint you as the guardian of the property and/or person of your father.

 

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Q:

My grandmother-in-law lives in South Carolina and is in the last stages of dementia. My mother- and father-in-law take full care of her, but it is getting to be too much for them to handle. My father in law's sister took care of her for about a month or two (out of 7 years) and while having her stay with her she went to a lawyer and had her mother’s house deeded to herself. My father-in-law since then has gotten guardianship of their mother because his sister was found unfit to take care of her not long after her getting her for the two months she had her. Now Medicaid will not approve her to get to stay in nursing home because of the sister getting deed to her mother’s house. We are at a standstill. Is there anyway they can do a early approval for her to be put in a facility because my in-laws’ health is really getting bad itself. My mother-in-law has rheumatoid arthritis and heart problems and she is the soul caretaker because her husband has to work to support them. The health of my mother-in-law has really gone downhill since she started taking care of her mother-in-law. 


Amanda from SC
A: Answered by Ann Margaret Carrozza, Esq.

You should speak with an elder law attorney regarding the possibility of having the house transfer undone. If your father-in-law was appointed guardian shortly after his sister transferred the house to herself by power of attorney, an argument may be made that she had no requisite legal capacity at the time she gave power of attorney to her daughter. Therefore, the transfer of the house can be reversed by the court that oversaw the guardianship. Alternatively, you may file the Medicaid application and when it is denied because of the transfer, you can appeal the denial on the grounds of undue hardship. Your grandmother-in-law had no control over making this transfer because it was done by someone else. She was shortly thereafter deemed legally unable to handle her affairs. You should definitely consult with a good attorney. 

 

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Q:

Can a lien be placed on my home if my spouse becomes a resident in a longterm care facility? Due to community property laws (NC) my spouse is on the deed, but the loan and mortgage is in my name only.  


Debra from NC
A: Answered by Shana Siegel, Esq., CELA

Generally, a lien would not be placed on your home. Your home is an exempt resource for Medicaid purposes as long as you live there. However, if your spouse owned an interest in the property at his death, then a lien could be placed on the home. Often spouses will transfer homes out of their spouse's name for that reason.  

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Q:

I have durable POA and healthcare POA for an elderly friend since she has no family to help her. She has had a number of health issues over the years, and now the doctors suspect she has had MS for a few years. She was released from a nursing home 2 months ago and has had to go back for more rehab. She has reached her rehab limit and the doctor says she should not be at home with only casual help now—she needs 24/7 care. She wants to come back to her mobile home, but cannot afford the care. Can I sell her home and keep her in a nursing home, or do I have to get guardianship to do that? I have not applied for Medicaid for her as yet, since she still has some funds in her bank account, but they will be exhausted in about 3 months with 24/7 care at home or 5 months care in a nursing home. It would be against her doctor's recommendations to move her back home, but she is fighting us all the way. She has exhausted her rehab limit and is on self-pay at the home now. Do I need to start the Medicaid application at this point and time? She has LifeAlert and they have come out many times to pick her up off the floor when there was no one there with her. I have also had to pick her up myself when I have popped in to visit. As a result, I have injured my back. She has been known to abuse her meds and does not stick to a schedule for eating her meals when there is no one there. PLEASE help me out with some suggestions as to what I can legally do! 


Paulette from OH
A: Answered by Shana Siegel, Esq., CELA

Depending on the power of attorney, you may have the legal authority to sell her home. However, she can revoke the power of attorney unless she is determined incapacitated. In your state, will Medicaid pay for home care? Perhaps she might be eligible for other assistance such as Veteran Aid and Assistance at home? If she has limited capacity, it is really the prudent course for you to initiate a guardianship rather than acting against her will. 

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Q:

I am my Mom's agent (I have a durable power of attorney for healthcare). The hospital told one of my relatives that when they release my Mom that she will have to go to a skilled nursing facility. She wanted to be in her own home, cared for there. Can they do this, make me put her in one of those? I do not think that she has the money for that as well. I was her caregiver at home prior to her needing to go to the hospital. 


Debbie from CA
A: Answered by Shana Siegel, Esq., CELA

They cannot force your mother to enter a facility. However, I would sit down with the social worker and discuss options. The hospital is supposed to ensure a safe environment. They may be able to assist you in getting additional support at home to make sure your mother can be cared for safely. 

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Q:

My father died 8 years ago, leaving his part of my parents’ home to his 5 kids. My mother has Huntington’s disease and has been in a nursing home on Medicaid for the last 15 years and my brother has guardianship over her. We can no longer keep up the home and would like to know what is going to happen if we sell it. Will Medicaid get all of the proceeds or will we still get proceeds from the half that my father left us in his will? 


Kimberly from TX
A: Answered by Shana Siegel, Esq., CELA

It really depends on the deed. Most of the time, husband and wife own their home jointly with right of survivorship. If that is the case, then the property belongs to your mother despite the terms of the will. If they owned divided interests without a right of survivorship (called tenancy in common), then your mother is only entitled to the proceeds from her one-half interest. 

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Q:

My mom is 80 years old. She was diagnosed with Alzheimer’s disease about 6 months ago. She is in the early stages and only has problems with short-term memory. She broke her hip last month and after surgery went into a nursing home for rehab. My sister has medical POA and I am the alternate. I have financial POA and my sister is the alternate. My mother also has degenerative bone disease and will never walk without a walker or wheelchair. I want to bring my mom home to live with me. My sister says, since she has the right to make medical decisions, I cannot remove my mom from the nursing home. Can I sign my mom out if I am the alternate medical POA for her? Is my sister really the only one who can legally remove my mom from the nursing home? Can mom sign herself out even though she's diagnosed with Alzheimer's disease? 


Ellie from AL
A: Answered by Shana Siegel, Esq., CELA

Your mother, and only your mother, has the legal authority to make her own health care decisions until she is found to lack that ability by a doctor. That being said, I would suggest that the three of you sit down and discuss these issues, with the help of a neutral third party if necessary. I am sure that each of you has valid concerns about mom's welfare and are only trying to do what you think is best for her. Mom should be involved in these decisions and hopefully you can find a compromise that addresses each of your concerns.  

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Q:

My Mother gave me POA and her health care proxy before she moved into assisted living in MA, as a result of early dementia in September 2009. Without informing me, my brother took her to his attorney to change him to POA in July 2010. Found this out in January 2012. As her assets are running out, she will be moved to a skilled nursing facility, where my brother is making arrangements to apply for Medicaid for payment. Although I am completely not on board with this decision, he has taken it upon himself to make all of the decisions, including which facility she will live in. He spends his winters in Florida and does very little when he is here. I have looked into all the facilities in our area and would prefer a different home. I am still her health care proxy. Do I have any say in this decision? Thank you in advance. 


Janice from MA
A: Answered by Shana Siegel, Esq., CELA

The best scenario is for you to discuss this matter with your brother and come to some kind of agreement. You may have authority to place her, but since he holds the purse strings, this is unlikely to be effective. If you both can focus on the fact that you are both working in mom's best interests, then hopefully you can avoid a court battle over these issues.  

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