Recent Articles

Follow Us

Recently, I was asked to serve as agent under Power of Attorney for husband and wife clients.  We’ll call them Harry and Wilma.  Both are in their 80’s and just moved to a nursing facility.  As their legal representative, I will be doing the types of things that, as an elder care attorney, I so often advise our clients’ family members who serve in that role.  So I thought I would share with you the process that I am working through and the steps I now am, and will in the coming months, take to insure that Harry and Wilma are well cared for. First, let me give you a bit of background.  Harry and Wilma live in a modest home which they told me they have owned for 50 years.  They have no children or family that they are close with.  Both are physically unable to navigate the stairs in their home or even leave their home without assistance.  But, my job is made easier because the reason they need nursing home care is because of their physical ailments, not mental ones.  Although at times their memory is a bit faulty they both were able to answer my questions and

Casey Kasem, the actor and radio personality best known as the host of American Top 40, a nationally syndicated radio program which aired in the 1970’s and 80’s, has recently been in the news for a different reason.  His second wife and the children from his marriage to his first wife have been fighting over him in court. Kasem has advanced Parkinson’s Disease and it has been reported that he is bedridden and that the illness has robbed him of his voice.   His illness may have also advanced to dementia.  Kasem’s  three children say they haven’t been able to see their father for several months and that his wife, Jean, has refused to share with them information about his medical health and care. The dispute does not appear to be about Kasem’s assets, but solely about his care.  His oldest daughter, Kerri, claims they are not named in their dad’s will and are not looking for anything financially from him.  They are upset, however, that they have been unable to see Casey and are frustrated in being unable to get access to his doctors. This week a California judge denied their application for a temporary conservatorship, however, another hearing is scheduled for next

Last week we were examining Mary Jane’s problem getting Medicaid for her mom.  Specifically, the issue was a joint account held by mother and daughter. Into that account, Mary Jane deposited her income which she used to pay for household bills, such as utilities, real estate taxes, homeowner’s insurance etc.  She took some of Mom’s income and transferred it to that joint account in order to pay some of those bills.  She explained that both of them were living in the household so they both contributed to the costs. “Not a problem”, I told Mary Jane.  “But, if you are claiming that the account isn’t Mom’s, you have the burden of proving that.  Medicaid assumes that it was Mom’s account and she put your name on it, not the other way around.  You must trace that account back to when it was just in your name, before you added Mom as a co-owner.  Only then will Medicaid be satisfied that it isn’t Mom’s.” Mary Jane listened carefully.  “So, is that it”, she asked.   No, actually there was more. If we are successful in showing Medicaid that it isn’t Mom’s account, then the transfer of Mom’s income to that account to help pay the bills

Mary Jane told me,  “Mom has no money.  She’s never had any money.  But Medicaid  still denied her application and now I owe the nursing home $40,000.”  I knew there had to be more to her story.  Sure enough, there was. It’s a very common belief that, because Mom and Dad never had much money, the Medicaid application process should be a piece of cake.  Maybe it should be but the reality is it just isn’t the case. Mary Jane’s dilemma was proof. Mary Jane told me that she and her Mom had lived together her entire life.  In fact, Mom and Dad transferred the home to Mary Jane.  When I heard that, I immediately thought this could be her problem right there. I asked how long ago the deed had been transferred.   “ 10 years ago”, was Mary Jane’s reply.  That was clearly outside the 5 year Medicaid look back period so could not have triggered a Medicaid transfer penalty.    It had to be something else. “Does Mom have any accounts with her name on it, that, in your mind, you don’t consider hers”, I asked.  That’s when Mary Jane told me that she had a joint account with Mom but she insisted

The winds of change are blowing over the VA landscape.  I’ve written about this in the past and the time may soon be here.  These are changes that you need to understand.   Over the years, many of our clients have been able to qualify for an Improved Pension (sometimes called Aid and Attendance Benefit) to help pay for the cost of long term care, whether that be in an assisted living facility or nursing home or to enable them to stay home longer. This VA benefit has helped many people meet the high cost of care and stretch their dollars.   In order to be eligible for the VA benefit, as a rule of thumb, claimants had to have assets totaling less than about $80,000 (not counting their home or car). They also had to meet the VA income rules. While giving away assets triggers a five year look-back under the Medicaid rules, under the VA rules there is no look-back period for gifts or asset transfers.   All of that may be about to change under new VA legislation making its way through the House and Senate.   While the legislation has not yet been voted on, there are commonalities in the bills which tell us

Last week we were discussing when it is appropriate for a parent to apply for guardianship of a child who turns 18.  But, what if guardianship isn’t suitable?  There is another option, called conservatorship.   Conservatorship is sort of a middle ground between a guardianship and power of attorney.   There is no determination of incapacity like there is in a guardianship proceeding.  I must be appointed as conservator by a judge but it cannot happen without my son’s consent.   This does give a measure of protection beyond a power of attorney since my son cannot simply revoke the conservatorship on his own.  He must go back to court and ask a judge to dissolve it.  If I am concerned that he will be preyed upon by scam artists and others who might try to take advantage of him, the conservatorship will allow me to step in and protect him.   Unlike guardianship, I cannot be appointed conservator to make medical decisions, only financial ones. In the scenario where my son wants to undergo a medical procedure that I consider inadvisable, a conservatorship will not allow me any input.   So, there you have it – power of attorney/health care directive, guardianship and conservatorship.  There isn’t always a