Elder Law

While it is possible to have a limited conservatorship that restricts some of your parents’ legal rights while leaving them with others, these are unusual and would involve an expensive and time-consuming procedure in court. The best approach is to stay in as close touch as possible with your parents in order to avoid their being taken advantage of and to be able to correct any problematic situation quickly. In almost all cases, contracts or agreements can be reversed if you can show that the person signing them did not completely understand them. Threats to report companies to the Better Business Bureau or the state attorney general’s consumer protection department can be very effective.

Yes and no. You are responsible, but the question is what does that mean? If you take reasonable steps to try to figure out what is best for your mother –- talking with her, with her physician, and with local elder care professionals –- and then make a decision to let her stay at home, and something goes wrong, you will not be at fault (unless, of course, they are all unanimous that your mother cannot stay home). And then, what is the penalty, if you are found not to have acted with reasonable care? It’s that you would be removed as guardian. You know your mother best, and we would recommend that you use your best judgment after consulting with appropriate professionals.

If your mother is still legally competent, she can revoke her existing durable power of attorney and execute a new one naming you or someone else as her new agent. If she does not have legal capacity, you will have to go to court to have a conservator or guardian appointed, who could then revoke the existing power of attorney.

While it may depend on your state’s Medicaid agency, the real question is whether you can get them the information they need and have access to her funds to pay her monthly income to the nursing home. If you’re able to accomplish this without being appointed guardian, it shouldn’t be necessary for purposes of Medicaid. The facility may still want someone to become guardian in order to make health care decisions for your mother-in-law. Your situation is a prime example of why we urge everyone to execute a Durable Power of Attorney and Health Care Directive.

A power of attorney and a guardianship are tools that help someone act in your stead if you become incapacitated. With a power of attorney, you choose who you want to act for you. In a guardianship proceeding, the court chooses who will act as guardian.

The standard under which a person is deemed to require a guardian differs from state to state. And even within some states the standards are different, depending on whether a complete guardianship or only a conservatorship over finances is being sought. Generally a person is judged to be in need of guardianship when he or she shows a lack of capacity to make responsible decisions. A person cannot be declared incompetent simply because he or she makes irresponsible or foolish decisions, but only if the person is shown to lack the capacity to make sound decisions. For example, a man may not be declared incompetent because he spends money in ways that seem odd to someone else. In addition, a developmental disability or mental illness is not, by itself, enough to have a person declared incompetent.

In most states, anyone interested in the well-being of an individual who may be incapacitated – called the “proposed ward” — can request a guardianship for that person. An attorney is usually retained to file a petition for a hearing in the probate court in the proposed ward’s county of residence. Protections for the proposed ward vary greatly from state to state, with some simply requiring that notice of the proceeding be provided and others requiring the proposed ward’s presence at the hearing. The proposed ward is usually entitled to legal representation at the hearing, and the court will appoint an attorney if the allegedly incapacitated person cannot afford a lawyer. At the hearing, the court attempts to determine if the proposed ward is incapacitated and, if so, to what extent the individual requires assistance. If the court determines that the proposed ward is indeed incapacitated, the court then decides if the person seeking the role of guardian will be a responsible guardian.

The agent under a durable power of attorney has authority to manage property, including its sale. While it doesn’t sound like a good practice for the lawyer to sell items without consulting with the family, this can be difficult to prevent. You should try meeting with the lawyer to discuss how to proceed in the future. Your only legal recourse would be to go to court to ask to be appointed conservator for your mother, which would permit you to revoke the power of attorney. But this could be an expensive, uphill battle, especially if the durable power of attorney also nominates the lawyer to serve as guardian and conservator, which is often the case.

You can freely transfer your interest in your parents’ house to your brother without it affecting your parents’ potential eligibility for Medicaid. The five-year look-back period only applies to transfers by your parents, not by you. Transferring your interest in the house is no different from giving away anything else you own, whether it’s your house or funds or investments you may own. All that said, it isn’t clear how you would be liable for anything your parents did in the house. As the life estate owners, they have full rights of possession of the property during their lives and full responsibility for its maintenance. As a remainder owner, you have no right even to enter the property and can’t be held responsible for what happens there.

Every law firm’s engagement agreement is different, but we can tell you how we — an elder law firm based in Boston — do most of our work. (Other ElderLawAnswers member firms may have different arrangements.) First, we charge $375 for the initial consultation. It’s an intensive meeting to understand the clients’ situation and goals, discuss planning options, answer questions and together develop a plan for moving forward. In most cases by the end of the meeting, we can quote a fee for implementing the plan. We generally ask for half the fee when we are hired and the balance when the client returns to sign the estate planning documents. If we are hired, we apply the initial $375 fee towards the ultimate cost (in effect, waiving it).

The answer depends on state law, so you’ll have to consult with an elder law attorney in your state. While the federal government requires all state Medicaid programs to seek recovery of their expenses from the estates of deceased beneficiaries – usually from their home, since that’s the only valuable asset Medicaid beneficiaries are allowed to keep – some states only seek recovery against probate property and others have so-called “expanded” recovery against non-probate property. Probate property is property only in the decedent’s name that must pass through probate to go to the person’s heirs. Non-probate property includes jointly owned property, trusts, accounts with named beneficiaries and, as in your case, life estates. In states that don’t have expanded estate recovery, life estates are often used as ways to avoid both probate and Medicaid estate recovery.

You can spend the money on anything for your mother. There is no limit. However, at some point the Medicaid agency may question whether the spending really is for your mother. For instance, how many sheets and blankets does she really need? One step many people take as part of their Medicaid spend down is to prepay for their funeral.

The transfer of a home can make the owner ineligible for Medicaid benefits for up to five years following the transfer. So, what your sister is contemplating could be a problem. However, there’s an exception for which your sister may qualify. Known as the “caretaker child” exception, if your sister can show that she lived with your mother for at least two years before your mother entered a nursing home and during that time provided sufficient care to your mother to keep her out of the nursing home for at least two years, the usual Medicaid penalty for transferring the home does not apply. Usually a letter from a doctor regarding the care provided by your sister will satisfy the Medicaid agency, but since the rules can change from state to state it’s important to consult with a local elder law attorney or with the Medicaid agency itself.

These are very good and difficult questions. A lot can depend on the elder law attorney with whom you work. Some are stricter than others about exclusively representing the elder parent. In his confirmation hearings to become a justice of the Supreme Court, Louis Brandeis suggested that in certain instances he had been the “lawyer for the situation.” In short, a lawyer can represent multiple parties with differing interests as long as there is full disclosure and informed consent by all parties.

In most states, annuities are considered assets and the proceeds from the annuity would have to be spent down to the Medicaid asset limits before you or your wife would be eligible for benefits. Otherwise, anyone could shelter assets by investing them in an annuity. However immediate annuities, those in an irrevocable payment mode, are counted as income rather than as assets because they can no longer be cashed out. The purchase of the immediate annuity or the transition into payment mode must meet certain requirements in order to not be considered a disqualifying transfer of assets. And, of course, increased income also can affect Medicaid eligibility in certain situations.

There should not be any disadvantage. Depending on your state, you may or may not be able to get some Medicaid-covered assistance for your mother at home. In some cases, even the family member providing the care can receive a stipend.

No. The creation and funding of an irrevocable trust, whether creating a brand new trust or amending a revocable trust to make it irrevocable, within five years of applying for Medicaid will result in a Medicaid penalty period. You could end up being ineligible for Medicaid benefits for up to five years. To find out if there is anything you can do, we suggest consulting with an elder law attorney in your state.

There is no single answer to your question — it depends on the lawyer and the question itself. Some lawyers will speak with any prospective client on the phone while others will require that they come in for a meeting. Some charge for an initial meeting and some do not.