K. Gabriel Heiser
Attorney, author, Medicaid asset protection planning
K. Gabriel Heiser, J.D., is an attorney with over 25 years of experience in elder law and estate planning. He is the author of "How to Protect Your Family's Assets from Devastating Nursing Home Costs: Medicaid Secrets," an annually updated practical guide for the layperson.
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Question
Is the original POA still valid?
Folowing up on NancyH's comment, there are more than type of power of attorney. The "general" power of attorney covers... Folowing up on NancyH's comment, there are more than type of power of attorney. The "general" power of attorney covers financial matters, and the person signing the document (the "principal") gives someone else (the "agent") various specific powers in the document related to financial matters.
It is important that the document specifically indicate that it will continue to be in force if the principal becomes incapacitated, i.e., a so-called "durable" power of attorney. Of course, that's just when you'll need it!
The other type of power of attorney form covers medical and health care decisions. It is not necessary to appoint the same person as agent of both types of POA. see more
It is important that the document specifically indicate that it will continue to be in force if the principal becomes incapacitated, i.e., a so-called "durable" power of attorney. Of course, that's just when you'll need it!
The other type of power of attorney form covers medical and health care decisions. It is not necessary to appoint the same person as agent of both types of POA. see more
Question
Is the original POA still valid?
It is certainly possible to revoke a POA, but it would be safer to have your mother sign a new one, to make it totally clear what her... It is certainly possible to revoke a POA, but it would be safer to have your mother sign a new one, to make it totally clear what her intentions and desires are. If she is not competent to sign a new POA, you would be forced to go to court to seek getting yourself appointed as her conservator/guardian if you wanted the powers normally given to you as the agent under a POA. see more
Question
Can a trust be established that would protect dependent child & longtime caregiver sibling from dad giving awa...
It's not that easy to "break" a trust. If your father is competent to understand the nature of what he is doing--and the... It's not that easy to "break" a trust. If your father is competent to understand the nature of what he is doing--and the attorney would certainly make sure of that before doing any of this--then he could certainly sign a trust to protect it from unscrupulous people down the road convincing him to sign it over to them. The trust would need to be irrevocable, i.e., it cannot be changed or revoked once signed. see more
Question
Mom and I jointly own a condo. It has secured her Medicaid eligibility. What is best way to legally save this...
Because of the intricacies of the state laws involved--both that of Oregon as well as California--you will need to find a Medicaid planning... Because of the intricacies of the state laws involved--both that of Oregon as well as California--you will need to find a Medicaid planning expert who is up-to-date on the Medicaid rules in both states. I would start out with finding an elder law expert attorney in Oregon, since that is where your mother is currently located. One place to search is the website of the National Association of Elder Law Attorneys (www.NAELA.org). They have a "find an attorney" link there. see more
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What's the purpose of putting two properties into a trust for a married couple if one needs to go into a nursi...
To Sonia: The POA terminates upon the death of the person who signed it. If you are named as executor under a person's will, you are... To Sonia: The POA terminates upon the death of the person who signed it. If you are named as executor under a person's will, you are legally responsible for paying their debts, but only out of THEIR money, if any. You are not liable for their debts out of your own personal funds. see more
Question
What's the purpose of putting two properties into a trust for a married couple if one needs to go into a nursi...
The only real estate that is exempt for Medicaid purposes is (i) the personal residence, and (ii) income-producing property (but only in... The only real estate that is exempt for Medicaid purposes is (i) the personal residence, and (ii) income-producing property (but only in SOME states!). Thus, if a married couple owns two pieces of real estate, they can only protect one at most (i.e., if it is their home). The other will most likely need to be sold at full fair market value and then the cash used for other planning techniques. see more
Question
Mom made me POA of financial and health decisions in 2011. She has dementia now and my sister went to attorney...
Unfortunately, it looks like you will need to hire an attorney and possibly seek legal guardianship and/or conservatorship of your mother.... Unfortunately, it looks like you will need to hire an attorney and possibly seek legal guardianship and/or conservatorship of your mother. All the facts will come out under oath during the hearing, and the judge will render a decision, hopefully in your favor. see more
Question
We used moms funds to put an addition on our home for mom. She went down faster than expected. Will they lien...
That is correct that a relative may not be forced to accept personal liability for the nursing home bill at time of admission. This is a... That is correct that a relative may not be forced to accept personal liability for the nursing home bill at time of admission. This is a federal law. see more
Question
I need help fast! Where can I print forms for POA, Guardianship & Executive of Estate?
The website LegalZoom.com has forms of POA (both financial and medical) that may help. A guardianship is a court procedure, and there is no... The website LegalZoom.com has forms of POA (both financial and medical) that may help.
A guardianship is a court procedure, and there is no form available for that. You would need to hire an attorney to assist you through the court hearing, etc.
The same for an estate: an attorney is almost always needed to file the proper forms with the local probate court. see more
A guardianship is a court procedure, and there is no form available for that. You would need to hire an attorney to assist you through the court hearing, etc.
The same for an estate: an attorney is almost always needed to file the proper forms with the local probate court. see more
Question
We used moms funds to put an addition on our home for mom. She went down faster than expected. Will they lien...
The best way to handle something like this would be for the parent to pay for the addition out of their own funds, in exchange for a legal... The best way to handle something like this would be for the parent to pay for the addition out of their own funds, in exchange for a legal interest in the house. This would be accomplished by creating a new deed that transfers some percentage interest in the house from you to your mother. Was this done? If not, then her payment to you could be considered a penalty-causing gift if she has to apply for Medicaid within five years of the transfer of funds.
As for the lien, some states use liens to protect their interest and some do not. Also, a lien can only be placed on your mother's legal interest in the house, so if you never did that deed I mentioned, then no lien can be placed on your house. Finally, some states have now ruled that a lien expires upon the death of a joint property owner, so once again, the rule varies with the state you are in. Ultimately you will want to consult with an expert in elder law and Medicaid planning in your state to sort all this out. see more
As for the lien, some states use liens to protect their interest and some do not. Also, a lien can only be placed on your mother's legal interest in the house, so if you never did that deed I mentioned, then no lien can be placed on your house. Finally, some states have now ruled that a lien expires upon the death of a joint property owner, so once again, the rule varies with the state you are in. Ultimately you will want to consult with an expert in elder law and Medicaid planning in your state to sort all this out. see more
Question
My mother doesn't qualify for Medicaid. How can we get help for her care?
A person with their own home and minimal assets (under $2,000 in cash plus personal property, a car, etc.) will very likely qualify for... A person with their own home and minimal assets (under $2,000 in cash plus personal property, a car, etc.) will very likely qualify for Medicaid if there is a medical need, also. However, what people fail to recognize is that upon the death of the person who received Medicaid while in the nursing home, the state will attempt to recoup its payments by filing a claim against that house. If the house is in the estate of the deceased former Medicaid recipient, then it will have to be sold to pay back the state. see more
Question
Does Medicaid take your income too?
The Medicaid income rule for married couples where one is in a nursing facility and the other is at home is as follows: The... The Medicaid income rule for married couples where one is in a nursing facility and the other is at home is as follows: The "at-home" (or "Community") spouse is entitled under Federal law to a MINIMUM of $1,891 per month, which may be increased--if needed to pay shelter costs--up to $2,898. So even if ALL the income from Social Security and pension is initially paid to the nursing home spouse, Medicaid will permit the at-home spouse to retain the first $1,891 of such income, with the balance going to the nursing home. Because the rules can get complex, I have devoted an entire chapter in my Medicaid Secrets book to this topic. see more
Question
Can someone explain what the 5-year "look back" period for Medicaid is?
If your mother gives you money, it is a gift that results in a penalty period (i.e., period disqualification from Medicaid). One possible... If your mother gives you money, it is a gift that results in a penalty period (i.e., period disqualification from Medicaid). One possible way to get money to you and minimize the penalty period is to give you a certain percentage of her lump sum and use the balance to purchase a type of immediate annuity known as a "Medicaid annuity." In order to calculate the numbers and do this right, you will need to contact an elder law attorney to assist you in this. I devote an entire chapter of my book, together with examples, on how this technique works. Good luck with everything! see more
Question
My Father was a veteran. He has passed away. My Mother is showing signs of dementia, is there financial assist...
Yes, under the Veterans Administration "pension" program, the surviving spouse of a veteran can receive the type of assistance to... Yes, under the Veterans Administration "pension" program, the surviving spouse of a veteran can receive the type of assistance to which you refer. I suggest contacting the local VA office for advice and the proper forms to fill out. Good luck! see more
Question
I have a Durable Power of Attorney signed by Mom and notarized. Now what do I do to make it official?
On the attorney listservs (email notices) to which I subscribe, I frequently hear complaints about banks not accepting valid POAs. Indeed... On the attorney listservs (email notices) to which I subscribe, I frequently hear complaints about banks not accepting valid POAs. Indeed it is a problem. Apparently some banks are worse than others. What attorneys generally recommend is avoiding the banks with the worst policies, but that's easier said than done, after the fact. see more
Question
I have a Durable Power of Attorney signed by Mom and notarized. Now what do I do to make it official?
There are two kinds of durable power of attorney forms: (i) effective immediately (no doctor's note needed), and (ii)... There are two kinds of durable power of attorney forms: (i) effective immediately (no doctor's note needed), and (ii) "springing" power, i.e., only "springs" into being effective upon the incapacity of the person whose POA it is. So, if it is the second type, a note from a physician is typically required to prove that the person whose POA it is is actually disabled mentally (usually defined in the document as unable to make decisions about their property, etc.). see more
Question
I have a Durable Power of Attorney signed by Mom and notarized. Now what do I do to make it official?
Unless you are using the POA to transfer real estate (which requires you to record the POA at the local register of deeds office), you... Unless you are using the POA to transfer real estate (which requires you to record the POA at the local register of deeds office), you typically need to do nothing. If it is signed and notarized, then it IS official, and valid. see more
Question
Will Medicaid take my Mom's house to pay for permanent nursing home?
It is always best to take the house out of the name of the individual in the nursing home, if they will be receiving Medicaid benefits.... It is always best to take the house out of the name of the individual in the nursing home, if they will be receiving Medicaid benefits. That is because federal law requires that the state file a claim for the Medicaid benefits it paid out, once the recipient dies. If the house is not in the recipient's name at death, the state cannot touch it.
That said, note that unless one of the exceptions applies, there will be a long period of disqualification from Medicaid if the nursing home resident applies for Medicaid within five years of taking their name off the deed. I discuss the various exceptions and how you can qualify for them in detail in my book "Medicaid Secrets." see more
That said, note that unless one of the exceptions applies, there will be a long period of disqualification from Medicaid if the nursing home resident applies for Medicaid within five years of taking their name off the deed. I discuss the various exceptions and how you can qualify for them in detail in my book "Medicaid Secrets." see more
Question
Will Medicaid take my Mom's house to pay for permanent nursing home?
As others have said, there is an exception to the gift rules if a parent transfers the home to the child who has cared for the parent (and... As others have said, there is an exception to the gift rules if a parent transfers the home to the child who has cared for the parent (and lived in the same house) for at least 2 years immediately preceding the date the parent entered the nursing home. You will need a physician's statement that your care was necessary to delay your mother needing nursing home care. see more
Does Medicaid take your income too?
"In instances where there are no liquid assets to satisfy the Medicaid estate-recovery claim, if there is nonexempt personal property or real property which is not protected homestead and the costs of sale will not exceed the proceeds, the property shall be sold to satisfy the Medicaid estate-recovery claim."
http://www.flsenate.gov/laws/statutes/2012/409.9101
See the statute for the long list of exceptions, too! see more