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My father is 90 and is in late stage of Alzheimer’s/Parkinson’s. I have taken care of him with the help of private caregivers for the past year and a half. My bro comes once a week to visit for an hour. (upset my dad chose me DPOA). Trying to abide by my father’s wishes to remain home, I have been through NUMEROUS caregivers but they don’t want to stay because he can be combative at times because of frustration that he cannot do things on his own. No matter how much I train CG as to how to approach him with care and his likes and dislikes, they are more concerned with being on cell rather than a companion to him. Now my brother is trying to convince me to place my dad in memory care which I agreed to only as RESPITE RESIDENT for 30 days for me to see how he acclimates. Otherwise he returns home! My father’s net worth is pretty substantial. My father created a Will at the same time he signed DPOA. But he did not create an Irrevocable Living Trust to protect assets which brings me to my question. As DPOA can I create one in his name? If so, does it need to be done prior to admittance?

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No, that ship 🚢 has sailed.

if you were to do this, your bro can go to court to have you removed from being POA or having any signatory power for any of dads finances and getting himself appointed instead of you. By your doing something that benefits you directly from dads income & assets, it creates “self dealing” which is not proper fiduciary duty of a POA. You’d be toast on being POA. Bro would be in charge.

Heres what I’d be concerned about, if it comes accross that your disinclination to have dad go into a facility with 24/7 oversight is more about your interest in keeping his “substantial” net worth for your own future supposed inheritance, AND you balk at paying for the facility from dads $ AND you ask Bro to be paying for things for dads care, dads property or needs, that Bro will seek to have dad placed under a guardianship or conservatorship whether it’s him or a court appointed one. And it will be granted.

If dad has “substantial net worth”, forget about Medicaid eligibility.

He’s going to need to spend down his nonexempt assets to 2k to ever, EVER, be ok for LTC Medicaid in most states. Please realize even if he does a spend down from his substantial net worth & gets impoverished so he can actually file a LTC Medicaid application…… that Medicaid still does a 5 yr look back and can go to 10 if transfers are suspected. That’s a huge period of time, if dad wrote checks to you, or bro or other family members or transferred property over the decade, it will surface as he has to provide bank and financials statements and caseworker can access state database on real property. Medicaid can place a transfer penalty on his Medicaid application. & as he would need to be in a NH in order to apply for LTC Medicaid, that NH will come after you to pay his bill if he’s ineligible for Medicaid.
Having the $ to private pay gives him lots more choices as to facilities and amenities, like his own sitter or shadow at a NH. Isn’t the best he can afford what you want for him?
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no. That planning should have been done much earlier.
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No, you cannot set up any trusts -- period. His money belongs to him and is for his care. What's left over goes to you and your brother. Too bad Dad didn't think enough of his assets or his children to plan properly for their safekeeping, because now you'll have to probate his estate when he dies. That won't be a picnic, but it is what it is. The lawyers will make money at least.

Frankly, denying him proper care so you can inherit more money isn't exactly admirable. I'm with your brother on this one.
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I had another thought after I posted. As your Dads POA and a daughter, I think trying to set up a Trust would be seen as a conflict of interest. You would eventually profit from that Trust as a beneficiary of his estate.
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AlvaDeer Sep 2021
I just did a bit of research on this and wow, do the rules ever differ state to state and situation to situation. There are hard and fast rules that this OP should find out from a good Trust and Estate attorney in her area. The document of her POA would have to SPECIFICALLY specify that she has this power. Even then she may not be able to and the rules are tough for doing so. In many states such as California you cannot be DPOA and have anything to do with Trusts unless you were ALSO designated as Trustee of Trust by the person who is competent and in good mind. And most lawyer will advise against this as in my brother's case, his attorney told him "Are you CERTAIN you want to make your sister the Trustee of your Trust, because when you do she can sell the gold out of your teeth". Hee hee. This is definitely a lawyer question for this OP, I think.
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Regarding your father's combativeness, could it be that he needs medication. Finding caregivers that will accommodate an unsafe environment is not fair for the caregiver or yourself to experience. I just had a caregiver leave unexpectantly and I had to rearrange my plans and call on friends. The respite is for you which can inclue exploring the options and plan without directly caregiving.
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Jo Ann is exactly right. His assets need to be used for his care, not protected so the taxpayers have to pay for his care on Medicaid.
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At this point it would be feudal to even try. His money needs to be used for his care not so you have an inheritance. I know that is blunt but Medicaid is for the low income. We as tax payers pay so someone gets the care they need. I don't mind that but I do mind someone trying to protect money so their kids can inherit it and then my tax dollars paying for their care. And really, you want Dad to have the best care he can afford. MC is private pay and I would want him there as long as he could afford to be there. Medicaid rarely covers it. In my State not till you have private paid for at least 2 yrs. 5 yrs ago where I live that would be a cost of 7k a month, 168k after 2 yrs. In other areas, more than 7k and prices have probably gone up in 5 yrs.

My daughter will tell you whether you are on Medicaid or private pay you are treated the same. My Mom got good care in her NH. But once she was on Medicaid she went from a 2 people room to a 4 people room. That was OK because her Dementia had worsened and she was in the common area all day only slept in her room at night. Wouldn't have been OK if she had her senses.

30 days may not be long enough for Dad to adjust. You may be asked not to come around for a couple of days or so. He needs to get used to the staff doing for him. When you start to visit, don't make it an all day think. Give yourself time to see that this is the best thing for him. He will just continue to decline as time goes on. It will be harder to care for him. You won't have to keep finding caregivers. You can enjoy him more if you aren't doing the caring and responsibilities are less. There comes a time its not what they want its what they need.
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As I see the issues, they're that (a) your father's behavior interferes with the ability to keep caregivers  (b) the caregivers aren't that serious about their responsibilities (i.e., phone calls vs. caring), although the question of companionship might not be what they anticipated), and (c) potential memory care placement.  

How are titles in his assets vested?    I think the important thing is that they're available for his care, including any placement.  What kind of assets are in question?    Can you draw down on them for placement through the DPOA, which I think would be the important issue now and in the future?

Why do you feel an IRT is appropriate? 
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No, you cannot create a Trust in his name and you cannot even MANAGE a Trust aready existing if you have not been named by him as Trustee of his Trust. Trusts have almost nothing to do with wills at all.
You should contact a lawyer to discuss your duties as your Father's LEGAL Fiduciary under the specific written things in the DPOA. You have many obligations, especially in record keeping, as well as rights to act in your father's behalf. His funds pay for you to see the Lawyer as his POA.
As you describe the situation I think that your brother is correct, and your father's funds should now be used to give him as safe, as comfortable and as secure living conditions as he is able to have given his condition.
I am so sorry for all your woes.
Do try to cooperate with your sibling (s?) in the care of your father in his last days as you do not want this to come to a war over guardianship which would override your POA. Often in cases of siblings at war the court will take the care of an elder completely out of the hands of a family fighting over him, and will assign a court appointed Fiduciary to place the person and manage the finances until death, at which point the person named as the executor of will or successor trustee of the trusts will take over management and distribution.
In legal cases it is always best to consult legal advice in your own state.
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Read your POA to see how extensive it is. Don't see why it would need to be done before he goes into respite.
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igloo572 Sep 2021
Post comes across that she’s hoping to do an Irrevocable LT to protect “substantial” assets so 90 yr dad w Alz & PD can go onto Medicaid.
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