Atmore, AL asked in Estate Planning and Elder Law for Florida

Q: Should I move money from our joint account to protect it?

My grandfather is in his 90 he recently had a bad fall went to the hospital where he stayed for a couple of weeks. He then is sent to a nursing home where he will stay for 21 days with the possiblity of being there indefinitely. My grandfather a couple of years ago put me and his account at his bank. My brother is the power of att. My brother is talking about hiring a lawyer to ess. Hide his assets and making a trust that cant be touched for 5 yrs for him to be eligible for Medicaid I know all about the transfer penalty and the 5 yr look back but my grandfather has told me multiple x that he wanted me have the money bc my brother was getting land I'm wondering what I should do. Should I transfer the money and face consequences later or should go along with what he says and lose control of the only thing I have control over.

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3 Lawyer Answers
Nina Whitehurst
Nina Whitehurst
PREMIUM
Answered
  • Estate Planning Lawyer
  • Crossville, TN

A: Medicaid pre-planning is a legitimate technique for protecting assets for the next generation. However, whether your brother can actually do this on behalf of your grandfather depends on the terms of the power of attorney (POA). Some POAs authorize this, and some do not. So that is the first question.

If the POA does authorize your brother to do this, then your brother will most likely be duty-bound to do so in such a way that it does not disrupt your grandfather's existing estate plan. To do otherwise would be a breach of his fiduciary duty to your grandfather.

The simple solution from your perspective is not to sign papers transferring the bank account to the Medicaid trust without first reading the trust for yourself. Even better, hire an elder law attorney to review it for you.

You could also insist on being a co-trustee of the Medicaid trust and insist that all decisions on behalf of the Medicaid trust require the consent and signatures of both co-trustees.

Seril L Grossfeld
Seril L Grossfeld
Answered
  • Estate Planning Lawyer
  • Fort Lauderdale, FL

A: In addition to agreeing with the first answer since it is obvious you and your brother have many misconceptions about elder law planning you should consult an attorney in your arena that practices in elder law so that attorney can review the documents currently in place and make suggestions.

Jason E. Neufeld
Jason E. Neufeld
Answered
  • Estate Planning Lawyer
  • Aventura, FL
  • Licensed in Florida

A: Hi there. First off, placing these assets inside an irrevocable trust while your grandfather is in a nursing home is the worst possible idea. The reason is - he doesn't have time to wait out the period of ineligibility that will be imposed after transferring assets to the irrevocable trust (the more money that goes into the irrevocable trust, the more time his nursing home bill wont be paid... just depends on how much money is transferred). There are plenty of other ways to protect his money and avoid this transfer penalty.

https://www.elderneedslaw.com/blog/can-i-gift-or-give-away-assets-if-i-am-on-medicaid-or-want-to-apply-for-medicaid

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