Ask the Elder Law Attorney
Here are a few of the questions the elder law attorney Dale Davidson has received in his years practicing law.
Contact us to receive answers to your legal questions today!
01. Should I transfer my mother's personal residence from my mother's revocable trust to her?
The Medicaid counselor at the nursing home suggested to me that I, as a trustee of my mother’s revocable trust, transfer my mother’s personal residence from my mother’s revocable trust to her. I think the Medicaid counselor is recommending this so my mother can utilize the intent to return home, but I think that will only buy her 6 months. I plan to sell the house but I don’t know how long that will take? Should I deed the house from my mother’s home back to her?
In Georgia your mother’s revocable trust is a counted resource and the house would be exempt from eligibility if your mother has signed an “intent to return home” or if similar language is contained in the revocable trust. You need to consult with a qualified elder law attorney before doing anything with your mother’s home.
02. Can you help me with Medicaid denial due to failure to sale rural commercial property?
My father was denied Medicaid because we can’t sell his rural commercial property. My father had the property appraised at just under $30,000.00. The property has been listed with a real estate broker for two years and we even tried to auction it. The Medicaid Caseworker is adamant that she won’t approve this application and has done everything in her power to prevent approval. We can’t generate any interest in the property. I have tried getting it rezoned as residential so it would qualify as homestead, but no luck yet. My father literally has no other property. All of his other assets were properly handled before the look back period. My father is currently in a local nursing home and he owes close to $30,000. We have offered the property to the nursing home, but this was rejected. Our family needs your help.
It sounds like the Medicaid Caseworker is not following the rules. It appears that your father has made a bona fide or good faith effort to sell the property in accordance with the Georgia rule. Under the Georgia rules, your father can apply for an undue hardship exception. Undue hardship is defined as a situation wherein an individual would be deprived of medical care such that his/her health or life would be endangered; or would be deprived of food, clothing, shelter, or other necessities of life. If you have not already done so, I strongly recommend that you seek the advise of a qualified elder law attorney as you have a limited amount of time to protest the Medicaid Caseworker’s decision.
03. What can be done to help protect the remaining assets in a revocable trust?
Several years ago my parents put all of their property into a revocable trust. The trust provides that my parents were co-trustees and that they could alter, amend, or revoke the trust at anytime during their lifetime. My father passed away 3 years ago and the trust was to be divided into 3 shares, one for my father’s separate property, one for my mother’s separate property, and one for their joint property. All my parents’ property was joint. The trust provides states that certain portions of the property can be protected from Medicaid. My mother has been in a nursing home for the past 12 months. The assets in their revocable trust are being spent and my mother will be broke within 24 months. What can be done to help protect the remaining assets in the revocable trust?
I have reviewed a lot of these trusts and unfortunately most of them do not work as promised. The problem your mother is facing is that her planning options are limited. However, all is not lost. Even though your mother is currently in a nursing home, there are techniques available to her to help preserve and protect her assets. My suggestion is to consult with a qualified elder law-planning attorney to discuss your mother’s options.
04. Can hotel costs and airfare be included in prepaid funeral expenses?
My father lives in a nursing home and he wants to be buried next to my mother in New Jersey, which considerably adds to the funeral expenses. I understand that my father can spend down some of his assets on a prepaid funeral plan. My sister and brother are asking if I can include their hotel costs and airfare in the prepaid funeral expenses? Is there any way to do that? Any help would be greatly appreciated.
I don’t think so. There was a court decision a while back about travel expenses, but I think that was a special needs decision. I would not even suggest that family members’ hotel and airfare be included in prepaid funeral expenses. I wouldn’t even include a reception meal. I don’t think there is any authority for including such personal expenses of the family.
05. How can we best take care of my aging mother and protect her home?
My mother was diagnosed with Alzheimer’s several years ago. My husband and I were retired, so we sold our house and moved in with my mother. We have taken care of her for the last 4 years. But because of her condition, it is getting more difficult to handle her and this situation is causing problems in our marriage. I don’t want to put mom in a nursing home, but I feel that I have no choice because she requires 24-hour care and supervision. Mom has a small checking account, a house, and lot located next to her home. I know that Medicaid will place a lien on mom’s house. I there anything we can do to protect her home?
The short answer is yes but it is somewhat complicated. Caregiving is stressful and you and your husband need to take care of yourselves. If something happens to you and/or your husband, who would take care of your mother? Getting back to the house, there is a technique available but you need to consult with a qualified elder law attorney. If you improperly transfer your mother’s house, you could cause a transfer penalty. Always consult with a qualified elder law attorney before transferring any of your mother’s property.
06. What is the state's right to recovery for my mother's care in the case of my father's death?
My mother had dementia and my father could no longer care for her at home, so he placed her in a nursing home. The nursing home was very expensive and so my father applied for Medicaid to help pay for my mother’s care. My parents’ assets were over the asset limit in order to qualify for Medicaid. The Medicaid Caseworker advised my father to purchase an annuity that complied with the law, which he did. My father died before the annuity paid out and while my mother was in the nursing home. My mother is still alive but no longer receiving Medicaid. The state made a claim against the annuity for my mother’s care after my father’s death. I don’t think this is right. Isn’t the state’s right to estate recovery limited to amounts paid for my mother’s care limited to amounts paid before my father’s death?
Georgia has a broad right to recover against your father’s estate for your mother’s care. The state’s right to recover is not not limited to the amount Medicaid paid for your mother’s long-term care as of the date of your father’s death. It sounds as if your father followed the advise of the Medicaid Caseworker instead of a qualified elder law attorney. There are other techniques that may have been available to your parents to protect their assets, even in the crisis situation they were in.
07. How can I afford a nursing home for my mother?
I can no longer care for my mother and she has reluctantly agreed to go into a nursing home. I visited several nursing homes in the area and was shocked at the price. The cheapest nursing home I found and that I would feel comfortable having her live was $7,500.00 per month. Who can afford these outrageous prices! Can you help my mother?
You are not alone in experiencing the sticker shock of long-term care. But you have to realize that cost of your mother’s long-term care does not just include her nursing home care, but also includes her current monthly living expenses. For instance, if she still owns her home she will continue to pay property taxes, insurance, upkeep and maintenance and utilities. If she has a supplemental insurance plan she will continue to pay that expense monthly. There are techniques that we can use to help your mother save her assets and we can help your mother but time is running out!