Ask the Elder Caring Lawyer

Hi–

Here is a page for you to ask general questions. I will respond publicly, so keep your private info private. A client-attorney relationship will be established only when we both have signed an engagement letter.

What question is on your mind and heart?

:- Doug.

15 Responses to Ask the Elder Caring Lawyer

  1. Beth says:

    What can protect an elderly parents assets, i.e., property, savings, etc from the expenses of a nursing home or end of life expenses? A trust? Or, can assets be transferred to family members before the need arises and then let medicare and medicaid cover the expenses? Thank you.

    • dgermann says:

      Beth–

      Thank you for asking this question. It is something on a lot of people’s minds and hearts when they are caring for their parents. It can be a big worry.

      Your parents’ situation is different from that every other set of parents. Your question leads me to want to ask you a lot of questions so we can get down to a response specific to your family, like: 1. Are your parents both still alive? 2. Are they married and living together? 3. Is one or both in the nursing home? 4. Do they own a home? 5. What assets do they have? 6. What is their monthly budget? 7. Is either of them a war-time veteran of the US Armed Forces? 8. How many children do they have, and how are each of them willing to help? 9. What do your parents want to accomplish? 10. What approaches are you considering? (I will email you privately to ask you these questions, so we can be a little more specific in our exchange.

      Elise and Fred (not their real names) were trying to figure out a way to pay for nursing home for Fred. They had $500,000 in assets. We worked out a plan for them that was legal and would have protected all these assets. I say would have because they decided that they felt a moral duty to pay a larger share of his nursing home costs. This is quite reasonable, and I supported them in this decision.

      Medicare can help, but statistically it pays a very small part of nursing home costs. Trusts sometimes are a tool we use, but there are other, simpler things to try first.

      The Veterans Administration can help, but the maximum they provide is around $2,000 a month, so they best help with assisted living or living at home. They are relatively easy to qualify for, but it takes 6-12 months to get approved.

      Medicaid is the program that pays the most, but it is harder to qualify for than V.A. Your assets need to be less than $1,500, and they assess penalties for all gifts made within 60 months of applying.

      That said, there are many ways to protect your parents’ assets so they can qualify and have a good quality of life. Maybe they should seek to qualify for Medicaid. Or V.A. Or both. Or neither.

      It is nevertheless a dark and overgrown forest you are trying to navigate, and this is where the elder caring attorney can help you find your way. That is, he or she can help you find a path that steers your parents through this woods from where they are now.

      Don’t try to go this alone, or even with a lawyer who is not an elder caring attorney. No, you should not rush out and give your parents’ assets to their children…if they want to apply for Medicaid some day. But it might be the right thing to do for V.A., if that is all the help they will ever need.

      See what I mean about this being very specific to each family? It is also very much a conversation to try to see what really fits. You tell me one set of facts, and that suggests one strategy or approach. Then you say, that does not work, because your brother would not be able do his part in the plan. So we suggest something else. And we go back and forth.

      Beth, please remember that this question and response does not establish a client-attorney relationship between us, nor between us and your parents. Nor should you use what is posted here in response as a roadmap for you to follow or put into effect. The only thing you should do is to get specific advice from a competent elder caring lawyer. Too much of your parents’ well-being depends on it.

      Let’s talk a few specifics in private email and see if we can narrow down the response for you, Beth.

      Thanks for posting!

      :- Doug.

  2. ram narayan says:

    i am told in indiana you can have either living will or will or some thing to that effect free
    where do we go to get that prepare for me and my family. what information i need to provide for that.

    thank you for the information in advance

  3. dgermann says:

    Ram–

    Glad you asked that!

    The Indiana State Bar Association as part of National Elder Law Month, is offering free attorney-prepared Living Wills and Health Care Powers of Attorney, and presentations about these documents to all Indiana residents. I am 2013 North Central Indiana coordinator.

    The way to get these documents is to attend one of the presentations.

    Although National Elder Law Month was May, 2013, there are still a few presentations to happen in June. In St. Joseph County, Indiana, the one remaining public one is at Hamilton Senior Apartments in New Carlisle on June 26 at 1:00 pm. Call 574-654-2301 for more details about the location. There are a couple others that might be scheduled soon, Ram. I will try to remember to post here and email you if those come about.

    If you are in another county in Indiana let me know and I will try to find out if there are others still to happen in your county.

    :- Doug.

  4. ram narayan says:

    thank you for the response

    i live in st joseph county so let me know there are anyin near future

  5. dgermann says:

    Ram and friends–

    There are two other Living Will and Health Care Powers of Attorney presentations which have just been confirmed, and are open to the public:

    * Robinson Community Learning Center, 921 N. Eddy Street, South Bend, IN 46617, June 24, 11:30 am, contact Vicky Hernandez 631-2835 to arrange a lunch.

    * Martin Luther King Center 1522 W. Linden, South Bend, IN 46628, on July 17 at 10 a.m.

    :- Doug.

  6. Dian Swoape says:

    Hello,
    My mom moved here from another state in May. It has become increasingly apparent that guardianship is needed based on her mental state as well as information gleaned about goings on back in her former home state. I know that there is a new law in Indiana stating that guardianship petition cannot be started until she has lived here for 6 months. What are my options for protecting her (even from herself) until the 6 month time period passes?

  7. dgermann says:

    Hello Dian–

    Thanks for your question, Dian!

    Sounds serious. The six month statute you refer to is probably the one in Indiana Code 29-3.5. The purpose of that statute does not appear to be to require 6 months’ residency before a guardianship can be instituted. Rather, it provides for instance, for notice to people as would be required to receive notice if the guardianship were filed in your mother’s “home state.” It is probably the same people under both sets of laws.

    This 2011 law allows the Indiana Court to appoint a guardian in an emergency. That might be the case with your mother, since you talk about protecting her from herself.

    So you should call an attorney in her geographic area right away and see what can be done.

    Please keep in mind that in many cases a Power of Attorney or a Trust can provide powers to do some of the things a guardian can do, so a guardian might not be necessary.

    Please let me know if I can help you help your mother, Dian.

    :- Doug.

  8. Sandra says:

    This may seem a dumb question but what are the state of Indiana’s regulations about serving desserts to residents at a nursig home and/or skilled facility

    • dgermann says:

      Sandra–

      Sounds like there is a story behind your question. What’s going on that prompted you to ask? A little context might help me respond more appropriately….

      :- Doug.

  9. bmilada says:

    My husband and I have a concern about how his grandfather’s estate is being managed in a living will. Basically he is allowed to “rent” or stay in his home as long as he is alive but it is run by his daughter. We do not think that he is being taken care of as he should be and the house is falling into disrepair. We are wondering what kind of legal rights we have in terms of stepping in to make sure he gets the care that he needs and that the money his grandfather gets every month is being spent to take care of him and is not being siphoned off elsewhere. Is there a specific legal course of action for a situation like this if speaking to his daughter has not led to the necessary improvements for the grandfather’s care?

  10. dgermann says:

    bmilada–

    Thank you for your question.

    Sounds like a complex setting! A couple of things I see:

    1. If he is under someone’s care and not getting what he needs, or they are actively preventing his proper care, this is something to report to Adult Protective Services. You should report neglect, abuse, and financial abuse. Are you in Indiana? The place to check for your local APS can be found here: http://www.in.gov/fssa/da/3479.htm.

    2. If the person, because of the trust, has control of substantially all grandfather’s property, then it might be necessary to get a court involved. The court could order a full accounting of where the money went; and make appropriate orders for future handling of the trust.

    3. That will take getting a copy of the trust and having a lawyer review that and any accountings that have been received.

    4. It may also be possible to sue the daughter for other things, depending upon what she has or has not done. For instance, causing “waste” to the property by letting it fall into disrepair.

    5. What does grandfather have to say about all this? Does he agree with your husband and you? It is hard for you to maintain a suit because you seem to have no standing in the matter. You might have, if for instance, your husband is a beneficiary of the trust. That again would take reading the trust.

    So the starting point is to get the trust, see what grandfather has to say about it all, and probably make an appointment to consult a lawyer about all this.

    If I can help you find the right Indiana lawyer, please give me a call at 574/291-0022, bmilada.

    :- Doug.

  11. Anita says:

    My parents are both over 65 and my mother is no longer competent to make any decisions on her own behalf. She named my father with power-of-attorney prior to the progression of her illness. Is he legally allowed to change beneficiary information on an annuity (if not explicitly stated in the POA) that currently names him as well as four other family members as equal primaries to himself as sole primary and the remaining as secondary? Or could he name one of the primary beneficiaries other than himself as sole primary (I’m not sure if he would get flagged for “benefiting” himself if he changed himself to sole primary)? If he is not permitted to do either, then is he allowed to cash it in to care for her at home with the assistance of other care providers? Thank you!!

  12. dgermann says:

    Anita–

    Thank you for asking! It is a tough thing to care for a spouse or parent when they can no longer make decisions or know what they are doing to be able to sign legal documents. You are wise to ask these questions before you take action. It is good your parents have you to help them.

    (Remember that answers on the Web must be general, and of course, no client-attorney relationship is formed by our exchange here.)

    This POA (Power of Attorney) is an authorization given by your mother to your father to do certain things for her. All POAs are different, so the terms of the POA document will need to be studied to see if they allow for dealing with an annuity, either to change beneficiaries or cash it in. Most POA forms you find on the Internet will not be very flexible, especially for long-term care needs.

    Anita, you have put your finger on a real issue for your father: can he name himself a beneficiary of the annuity? In Indiana, the default is that the agent cannot benefit himself. It is possible that the terms of the POA document itself allows for that. But it is always something to be researched, because the courts, too, have a say in what will work or not.

    If your parents are Indiana residents, then there are statutes which also expand or limit the powers the agent has. Most states have statutes dealing with POAs. So those need to be studied.

    The annuity company may have something to say about this too. While I have seldom had troubles from these companies in changing a beneficiary to the agent, the terms of the policy itself (yes, all 50 pages!) need to be read to see what their limits are, and even then you need to call the company to see what their requirements are.

    You have highlighted one possible way around this: your father may be able to resign as agent, or even do so for this one transaction only. Then the back-up agent could do what is needed. Another option might be to get your father or someone else (you?) appointed as her guardian. The POA is a lot cheaper.

    There is one other issue that might be important: if your mother should need Medicaid assistance either at home or in a nursing home, then *any* change in the annuity could cause the annuity to be treated as a penalizable transfer, delaying or preventing her getting Medicaid. So before you make changes, you will want to talk with an elder caring attorney.

    As you can see, there are no black and white answers to your situation, but there is usually a way through.

    If you would like to talk more specifically and see what can be done in your parents’ situation, please email me or call me at 574/291-0022.

    :- Doug.

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