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- What is Elder Law?
- What is guardianship?
- What is conservatorship?
- My father has no assets and the only income he receives is his Social Security check. He did not execute a power of attorney and now he is incapacitated. Do I need to file for conservatorship?
- My mother is mentally incapacitated and does not have a power of attorney or an advance medical directive. How can I assist her with her daily affairs?
- My father went into the hospital and has been moved to a nursing home for rehabilitation. How is he going to pay for this?
- I have been thinking about purchasing a long term care insurance policy but I hear that they are expensive. Should I get one? If so, from whom can I purchase one?
- My brother serves as power of attorney for my mother. I have asked him to see what he has spent from her accounts and he refuses to tell me. What can I do?
- My wife has just entered a nursing home and she will not likely come back to our house. Is it too late to plan?
- Are the eligibility rules for Medicaid long term care benefits the same for married people as they are for single, divorced or widowed people?
- Is it true that you can only own $2,000 or less in order to qualify for Medicaid to pay for your nursing home bills?
- My brother and I are our mother’s only children and she does not have a spouse. We have a power of attorney and want her to give her assets to us so that Medicaid will pay the bills from the nursing home she will enter next month. Should we do this?
1. What is Elder Law?
A: It is knowledge and advice to meet the needs of older persons and their families. This knowledge and advice is developed from the study of a number of areas of the law. Those areas include wills, trusts, powers of attorney, advance medical directives, estate and trust administration, tax planning, special needs trusts, assisted living and nursing home planning, guardianships, conservatorships, real estate and public benefits, such as Medicare and Medicaid.
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2. What is guardianship?
A: Guardianship is a court proceeding in order to end up appointed as guardian for someone. In the elder law context, we are referring to a guardian having decision-making power for an adult. A guardian makes medical and residential decisions for the person. While the court process cannot be adequately explained in this forum, it entails filing a petition saying that you want to serve as someone’s guardian. The Court then appoints another attorney who has knowledge in this area to render an independent report to the Court about (a) whether or not the person needs a guardian and (b) whether or not the person who wants to serve as guardian is an appropriate choice. A medical report is also filed with the Court and medical records are reviewed. Relatives and the person over whom the guardianship is sought are interviewed. There are certain notice requirements and the process culminates in a court hearing. At the hearing, the court is without jurisdiction to overlook any procedural mistakes someone makes in the process. For this reason, most people hire attorneys to help them.
This proceeding is rarely needed when the person has previously signed an advance medical directive or, at least, a medical power of attorney.
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3. What is conservatorship?
A: Conservatorship is a court proceeding in order to end up appointed as conservator for someone. A conservator makes financial and property decisions for the person. The court process is similar to that described in the previous question. However, judges usually require the conservator to use the person’s funds to purchase an insurance policy, called a surety bond, to insure the person against the conservator’s negligent or criminal loss of their assets. A conservator must account to a quasi-judicial figure, called a Commissioner of Accounts, annually.
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4. My father has no assets and the only income he receives is his Social Security check. He did not execute a power of attorney and now he is incapacitated. Do I need to file for conservatorship?
A: If he has assets, or a non-governmental source of income, then filing for conservatorship will likely become necessary. If the only income your father has is from the Social Security Administration (“SSA”), then you may be able to become his representative payee through the SSA and avoid a conservatorship.
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5. My mother is mentally incapacitated and does not have a power of attorney or an advance medical directive. How can I assist her with her daily affairs?
A: If your mother’s mental capacity is such that she cannot understand and sign a power of attorney and/or an advance medical directive, you will need to petition the Court to become her guardian and conservator. The assistance of a lawyer in preparing the petition and representing you at a hearing almost always advisable. Once you are appointed as guardian and conservator, you will be able to gain access to her assets to assist her with her affairs. If you mother is receiving social security benefits, you can apply with the Social Security Administration to become her “representative payee” because social security is a federal benefit. This process is independent of conservatorship. As representative payee, your mother’s social security benefits will be sent directly to you to be used for her benefit.
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6. My father went into the hospital and has been moved to a nursing home for rehabilitation. How is he going to pay for this?
A: It depends. If he has Medicare, then it will pay for the hospital stay. If he stayed three days in the hospital before going to the nursing home, then Medicare will cover the first 20 days in the nursing home. Medicare then pays a portion of days 21-100 in the nursing home, assuming that he continues to receive “skilled” care. Occupational, speech and physical therapy usually meet this standard. A Medicare supplement plan becomes very important at this stage because Medicare pays so little; a supplement will cover the balance until skilled care ends or the 100 days comes to an end. Medicare Advantage plans usually pay less of this cost than other supplemental plans. At this point, your father will (a) pay from his own funds, (b) have a long term care insurance policy pay or (c) have Medicaid pay if a patchwork of conditions have been met.
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7. I have been thinking about purchasing a long term care insurance policy but I hear that they are expensive. Should I get one? If so, from whom can I purchase one?
A: There is no “one size fits all” answer to this question. “Expensive” means different things to different people. One place to start this analysis is to ask yourself why you want the policy. If you have a desire to protect enough assets from being spent in a nursing home in order to pass on an inheritance to loved ones, then you should explore the issue. Another reason would be that you have a very strong desire to never live in a facility. There are at least 5 major parts of each policy and each one will operate to determine the cost of your premium. For instance, policies that pay for an unlimited number of years of care cost more than those for a terms of years (i.e. 5 years). Cost will also be determined by your age and your health.
While some attorneys have been getting insurance licenses to sell these to clients, we have not. We can, however, refer you to someone knowledgeable and trustworthy. Before you even sit down with an advisor, you should read “The Shopper’s Guide to Long Term Care Insurance”. It is an excellent source of unbiased information. It is produced by the National Association of Insurance Commissioners and is available at their website, www.naic.org. This publication will arm you with the knowledge you need to determine if such a policy makes sense for you.
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8. My brother serves as power of attorney for my mother. I have asked him to see what he has spent from her accounts and he refuses to tell me. What can I do?
A: You may send him a written request for an accounting. If he does not provide it within a certain number of days, you may petition a court to have him come before the judge and explain why he should not produce such an accounting. The judge has the authority to make him produce one which details the expenditures over the previous five years.
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9. My wife has just entered a nursing home and she will not likely come back to our house. Is it too late to plan?
A: No, it is not too late. This is a common misconception. You still have many long term care planning steps which might be taken. In addition, it is wise to review your wills, trusts, powers of attorney and advance medical directives, or get some of these in place if you do not have them.
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10. Are the eligibility rules for Medicaid long term care benefits the same for married people as they are for single, divorced or widowed people?
A: No, the differences can be dramatic. As an example, all of the land surrounding a home is exempt from Medicaid calculations if a spouse resides in that home. This is one of the most common misconceptions and can be financially devastating if not taken into account when analyzing Medicaid eligibility for long term care benefits.
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11. Is it true that you can only own $2,000 or less in order to qualify for Medicaid to pay for your nursing home bills?
A: For “countable” resources, the answer is yes. For “exempt” resources, the answer is no. For instance, a home is exempt while a spouse lives in it. There are many eligibility rules governing resources and many exceptions to these rules. Each person has a different income and asset puzzle.
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12. My brother and I are our mother’s only children and she does not have a spouse. We have a power of attorney and want her to give her assets to us so that Medicaid will pay the bills from the nursing home she will enter next month. Should we do this?
A: The first question is whether or not the power of attorney even allows you to do this. Even assuming it does, this is a bad idea. Gifts of this nature are called “uncompensated transfers.” Dramatic changes in the laws were made on February 8, 2006. If you make such transfers, then your mother might be disqualified from receiving Medicaid long-term care benefits for a number of months (a penalty period) depending on certain circumstances. During that penalty period, she wouldn’t have assets to pay the nursing home, and Medicaid would not pay the bills. You likely have other options for preserving some of the assets for you mother’s benefit, but gifting in this manner is frequently not wise.