Elder Law Questions & Answers

Q: Can my husband get power of attorney to handle his mother's affairs?She has advanced Alzheimer's disease.

1 Answer | Asked in Family Law and Elder Law for Mississippi on
Answered on Jun 18, 2018
Arthur Calderon's answer
It sounds like the best option may be for him to get a conservatorship over her, so that he can manage all of her affairs. A conservatorship is similar to a guardianship, except that it is used for adults who are unable to manage theirs affairs, whether because of advance age, medical diagnosis, etc.
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Q: Mother passed with will while in nursing home paid for via Medicaid. I am only living child and only heir in will.

1 Answer | Asked in Elder Law and Probate for Georgia on
Answered on Jun 16, 2018
John W. Chambers Jr's answer
Here is a link to a brochure available from the Georgia Department of Community Health: https://dch.georgia.gov/sites/dch.georgia.gov/files/Web%20Version%202014.pdf. The brochure states: "The total gross value of the estate must be valued over $25,000 for estate recovery to apply. An estate includes all real and personal property (homes, land, vehicles, cash, bank accounts) held individually or jointly. All assets of a deceased Medicaid member are subject to recovery including property held...
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Q: My Mom has a will for my sister & I to get her house when she dies. She is in a nursing home & Medicaid pays & most of

1 Answer | Asked in Elder Law for Texas on
Answered on Jun 14, 2018
Terry Lynn Garrett's answer
In Texas Medicaid can recover from the estate which passes under the Will. We have two forms of deed which pass title outside the Will. If your mother has legal capacity to sign a deed or has appointed an agent under a Durable Power of Attorney, contact a local elder law attorney about getting one of these in place. Use the Find a Lawyer function on the website of the National Academy of Elder Law Attorneys (www.naela.org)
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Q: If someone is incapable of filling out papers who is responsible for bill? The person filling papers out or the patient?

1 Answer | Asked in Elder Law for Texas on
Answered on Jun 14, 2018
Terry Lynn Garrett's answer
If she signed as "agent," her sister, the principal, is responsible. If she signed as "responsible party," the nursing home will try to argue that she is. This is an all-too-common scam: nursing homes would much prefer to receive the higher private pay rate from family members than the lower Medicaid rate for which the vast majority of residents are eligible, sooner or later. Ask a local elder lawyer to talk to the lawyer representing the nursing home. You can find one using the...
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Q: if my aunt is not physically capable to make a decision and her sister signs for her is she legally responsible for the

1 Answer | Asked in Elder Law for Texas on
Answered on Jun 13, 2018
Terry Lynn Garrett's answer
Her sister should sign as "agent," not as "personal representative." If she has signed as "personal representative," ask an elder lawyer to straighten things out with the nursing home. You can find one on the website of the National Academy of Elder Law Attorneys (www.naela.org)
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Q: my aunt was put into a nursing home and now the home has turned in the bill to a collection agency. who has to pay?

1 Answer | Asked in Elder Law for Texas on
Answered on Jun 13, 2018
Terry Lynn Garrett's answer
Your aunt's bill is your aunt's bill. She, or someone helping her, should talk with the nursing home social worker about applying for Medicaid. If she has over $2,000 in assets in addition to a house, car, household goods and a funeral plan or over $2,250 in monthly income, it may be worthwhile to talk with an elder law attorney. Use the Find a Lawyer function at www.naela.org, the website of the National Academy of Elder Law Attorneys.
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Q: POA removed from Financial Institution

1 Answer | Asked in Criminal Law, Family Law and Elder Law for Illinois on
Answered on Jun 13, 2018
Robert D. Kreisman's answer
I think you would need to hire an attorney in the state where grandmother was taken. You may consider with that lawyer and one in your state in having a guardianship set up naming you as guardian of the estate and person of grandmother to have her situated in a facility that will be especially capable of handling dementia patients. The guardianship will also nullify that improper POA that daughter #2 has manipulated grandmother with.
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Q: What are the repercussions of having someone forcibly moved to a nursing home?

1 Answer | Asked in Elder Law for Texas on
Answered on Jun 11, 2018
Terry Lynn Garrett's answer
Other than the person themself, only a guardian of the person can determine residence. If your husband lacks legal capacity and if someone can get a Physician's Certificate of Medical Examination stating this, they can apply for a guardianship.

As the spouse, you are responsible for necessaries: food, shelter and medical care. The Assisted Living Facility is unlikely to accept your husband without some assurance of payment. If money runs out, they might sue you.

Medicaid...
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Q: If my brother who has POA for 93 year old mother is threatening to take my mother out of the country, is he able to. Dem

1 Answer | Asked in Elder Law for Utah on
Answered on Jun 11, 2018
Wesley Winsor's answer
Hello,

Is your mother incapacitated? Has she been diagnosed with dementia, Alzheimer's etc? If she is still considered capacitated, then she can choose for herself whether to go out of the country. If she isn't, then a power of attorney is not the correct document/authority your brother would need to enforce his "right" to determine where she will live.

The correct authority would stem from either an Advance Health Care Directive that was signed when your mother had capacity...
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Q: Is it possible to cancel a reverse mortgage?

1 Answer | Asked in Elder Law for California on
Answered on Jun 8, 2018
Sally Bergman's answer
In the initial stages, it can be cancelled, but once it has closed, the only way to get rid of it is to pay it off. It is a very rare situation where I might recommend a reverse mortgage for any of my clients. The RM companies have these wonderful actors on TV claiming how they're the best things since sliced cheese, but that's not often the case. Even with new laws that require "counseling" before closing, older adults often cannot appreciate the consequences.
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Q: If me and my siblings use some of mom's money and then she's goes to nursing home will we have to pay money back?

1 Answer | Asked in Family Law and Elder Law for Alabama on
Answered on Jun 2, 2018
Jack T. Carney's answer
If your mother needs to qualify for Medicaid (assuming she does not have the resources to pay for nursing home care), then you would need to repay the funds if she needs to qualify for Medicaid. It’s all related to the Medicaid “transfer penalty.”

The penalty basically works as follows: Medicaid will look at every transfer in the prior 5 years and regardless of the reason, will assess a penalty based on the amount transferred to another person. The penalty is a period of...
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Q: MY Tx. home sets 5 acres..Can I sell 2 acres to my daughter and not have my MEDICAID cut off?

1 Answer | Asked in Elder Law for Texas on
Answered on Jun 1, 2018
Terry Lynn Garrett's answer
Anyone receiving Medicaid can have no more than $2,000 in the bank at the end of each month. If you sell to your daughter -- at fair market value -- and spend the money on a prepaid funeral or similar expenses so that you have no more than $2,000 in the bank at the end of the month, in theory you should be okay. Please note that the sale cannot be a "sweetheart deal": it must be for fair market value. Please also note that the situation may be more complicated depending on why you are...
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Q: My 81-year-old mom is living in a dangerous situation due to her hoarding. Can I do something to force her to get help?

1 Answer | Asked in Family Law and Elder Law for Ohio on
Answered on Jun 1, 2018
Joseph Jaap's answer
If you cannot persuade her to do what is necessary, then you could attempt to be appointed her guardian by filing in the probate court, but you would need a doctor to confirm that she is not fully mentally competent and requires a guardian. Your brother may be taking advantage of the situation to keep a place to live for himself. Persuade her to meet with an estate planning attorney to review her situation, especially Medicaid planning, and to at least execute a health care power of attorney...
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Q: Can assisted living facility in California refuse cameras in private quarters because employees do not want it.

2 Answers | Asked in Consumer Law, Elder Law and Health Care Law for California on
Answered on May 27, 2018
Sally Bergman's answer
Fortunately, in California we have a very effective non-profit organization, California Advocates for Nursing Home Reform, www.CANHR.org, Telephone: (800) 474-1116 who can provide guidance to you. If they can't handle it, they will direct you to an appropriate attorney who can.
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Q: What are my options if I fear losing my job for not performing a task that is a crime

1 Answer | Asked in Employment Law, Elder Law and Health Care Law for Tennessee on
Answered on May 25, 2018
Mr. Kent Thomas Jones Esq.'s answer
The category of your question, to me, falls into the question of whistleblowing. Whistleblowing is a charge if you are alerting and/or turning in your present employer for something that they are doing that is illegal. My advice to you is to consult with local legal counsel about the situation.
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Q: Does Medicare cover nursing home costs?

1 Answer | Asked in Elder Law for Florida on
Answered on May 25, 2018
Jason E. Neufeld's answer
Medicare has a very limited nursing home benefit. They will pay full bill for 20 days. They will pay bill for days 21-100 but you’ll have a $167.50/day copay.

After 100 days, Medicare will not pay. Generally, you’ll then have to privately pay unless you qualify for Medicaid.

My firm helps people legally and ethically qualify without having to spend down all of their assets.

Let me know if you have any other questions.
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Q: My stepsister's daugh & I got in an argument. Can the daugh stop me from visiting my disabled brother?

2 Answers | Asked in Family Law and Elder Law for Georgia on
Answered on May 23, 2018
P. Justin Thrailkill's answer
You need to talk to DFCS if you are concerned about potential elder abuse. Otherwise, if she has an interest in the property she can keep you out if you are not invited by another co-renter.
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Q: My mother suffers from Alzheimer's and we're trying to find a facility for her.

1 Answer | Asked in Real Estate Law and Elder Law for Texas on
Answered on May 23, 2018
Terry Lynn Garrett's answer
As agent under a Durable Power of Attorney, you can sell the home or sign a "Lady Bird" Deed to transfer it on death and rent it out using a special form of lease. Find a local elder lawyer on the website of the National Academy of Elder Law Attorneys (www.naela.org) to guide you.

You do NOT want to put the home in your name. Your mother will likely need Medicaid nursing home care within 60 months. That would be viewed as a transfer for less than fair market value. Unless the total...
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Q: Tax question for Medi-Cal Qualifying Trust in California

1 Answer | Asked in Estate Planning, Tax Law and Elder Law for California on
Answered on May 22, 2018
Sally Bergman's answer
These types of irrevocable trusts are typically set up as "grantor" trusts which means that they remain under the Social Security number of your mother and the income is taxed to her. I hope this is not something you are trying to set up yourself as they are typically only prepared by qualified Elder Law attorneys. As well, if she does not need to immediately qualify for long term care Medi-Cal benefits, an irrevocable trust may not even be needed as in California we have many different...
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Q: What should I do if I'm not sure whether my father was of sound mind when drafting his will?

1 Answer | Asked in Elder Law for Texas on
Answered on May 18, 2018
Terry Lynn Garrett's answer
From your question it sounds as though you would like to contest the Will. You will need to hire a probate litigator -- and have good evidence, patience and a deep, deep pocket. You will also have to be prepared for an irreparable breach within your family.
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