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Elder Law FAQs

My widowed mother is in a nursing home. What can she keep to qualify for Medicaid?

Your mother is permitted to keep the following and still qualify for Medicaid:

  • $2,000.00
  • Irrevocable Funeral Contract
  • burial plot
  • life insurance (face value less than $1,500.00)
  • Home (equity less than $500,000.00/not owned by a trust)
  • Car
  • personal property

 

My widowed father was recently admitted to a nursing home. Is it too late to protect and preserve his assets?

No, it is not too late to protect and preserve his assets. Anywhere from one-half to two-thirds of his assets can be protected, depending upon his monthly income and the daily rate at the nursing home.

 

My mother, who is married, is in a nursing home. What assets can my father keep, and still be able to qualify my mother for Medicaid?

Your father is permitted to keep the following items and still qualify your mother for Medicaid:

  • $2,000.00 in cash
  • community spousal resource allowance (minimum of $23,448.00 and maximum of $117,240.00)
  • Irrevocable Funeral Contract
  • burial plot
  • life insurance (face value less than $1,500.00)
  • Home (equity less than $500,000.00/not owned by a trust)
  • Car
  • personal property
  • Irrevocable Trust for Dad’s sole benefit

 

My father is in the nursing home and my mother is healthy. Is she going to lose all of her assets?

No, up to a 100% of a married couples’ assets can be protected for the benefit of the healthy spouse.

 

My father, a retired automotive worker, is in a nursing home on Medicaid. My mother, a homemaker, receives very little income from social security. Does all of my father’s income have to go to the nursing home?

No, your mother is allowed a Community Spousal Income Allowance (CSIA) from your father. The minimum CSIA she is allowed is $1,938.00 and the maximum she is allowed is $2,931.00. Further, should a need exist; a petition can made to the Probate Court asking for an increase in her income allowance.

 

My neighbor told me that if you are in a nursing home and qualify for Medicaid that the State will take everything after you pass away. Is this true?

The State of Michigan enacted Estate Recovery in July 2011. As of now Estate Recovery only applies to assets that are subject to probate. As such, it is recommended that you meet with an Elder Law attorney to discuss this new law in further detail and possible options available to you to avoid being subject to estate recovery.

 

My father is a veteran and needs at-home care. Are there any benefits available to him?

Yes, your father may be eligible for Aid and Attendance care. This Improved Pension (part of the VA Improved Pension program) allows for Veterans and surviving spouses who require the regular assistance of another person with such tasks as eating, bathing, dressing to receive additional monetary benefits. It also applies to individuals who are blind or a patient in a nursing home because of mental or physical incapacity. Assisted care in an assisted living facility also qualifies.

Many families of Veterans often overlook this important benefit. This is a “pension benefit” and is not dependent upon service-related injuries for compensation. Aid and Attendance can help pay for care in the home, assisted living facility, or care in a nursing home.

 

My spouse and I own everything jointly. Do I still need a General Durable Power of Attorney?

Yes. If you become incapacitated, your spouse can still sign checks and make withdrawals on joint bank accounts. However, your spouse cannot sell jointly owned stock or real estate, or liquidate tax-deferred accounts [ex. IRA, 401(K)] without having written authority to sign on your behalf.

 

Can I add my son or daughter’s name to my bank account instead of having a General Durable Power of Attorney?

You can create a joint account with a child or other relative, which would then give him or her power to make withdrawals and write checks from your accounts.

However, you should carefully consider the real possibility of future problems with this arrangement. Joint tenants have been known to withdraw large sums from accounts for their own use, not the principal’s benefit. The joint account is subject to attachment by creditors of the joint account holder, and may affect eligibility for Medicaid.

You may also run into resistance from the joint tenant if you want the bank account back in your name alone. Additionally, if you die, the presumption is that the money in the joint account would belong to the joint tenant, which may not be what you intended.

 

I have a General Durable Power of Attorney but I do not have a Durable Power of Attorney for Health Care. Do I need one?

Yes. A General Durable Power of Attorney only applies to your financial affairs. Conversely, a Durable Power of Attorney for Health Care is a document in which you appoint another individual to make medical treatment and related personal care decisions for you, including end of life decisions, day to day care and treatment decisions, and mental health care decision.

 

A few years ago, my father executed Durable Powers of Attorney for Health and Financial decisions. He now suffers from Alzheimer’s and is no longer competent. People are telling me that I need Guardianship and Conservatorship. Is this true?

No. The Durable Powers of Attorney for Health and Financial will allow you to make health care and financial decisions for your father in lieu of a guardianship (care, custody, health) and conservatorship (financial affairs). However, if the Power of Attorney is not acting in your father’s best interests, you may petition the Probate Court to have a Guardian and Conservator appointed over his affairs.

 

What is Probate Court?

Probate Court is a division of Circuit Court charged with overseeing issues related to incapacitated individuals and estates. This includes Guardianships, Conservatorships, and Estate Administration.

Generally, the Probate Court gets involved when an incapacitated individual is in need of a person to make decisions on their behalf, either in the form of a Guardianship (protection of the person) or a Conservatorship (protection of the assets). There is also Probate Court involvement when a person dies owning any assets with or without a will. The Probate Court provides legal authority for the assets to be distributed. Whether or not the person has a will, the Probate Court will ultimately issue an Order directing distribution.

The probate process can be costly and expensive. Additionally, once the Probate Court gets involved individuals lose control; in court, the judge always has the final say. Perhaps most important to some is the fact that the entire probate process and all the probate records are open to the public. In our experience, people want to maximize control, minimize the time and expense of administration, and most importantly keep private matters private.

 

Does a Will avoid Probate Court?

No. A will does not avoid probate, however, it does provide directions to the court on how you would like to have your estate administered.

A will is a simple document that allows you to set forth your wishes regarding how you would like your estate to be divided and allows you to designate a person to administer your estate according to those wishes.

A will has very simple requirements: the person must be eighteen years of age or older; the person must be competent; the document must be signed by the person creating the will; and the document must have the signature of two witnesses. The will can be hand written or typed.

 

Are Trusts only for the wealthy?

No, Trusts are for every day people like you and me. Often times a Trust provides a more economical way to administer your estate. A properly funded Trust avoids probate, and keeps your affairs private. A Trust is easy to create, maintain and change, allows you to maintain greater control of your affairs, and protects children and adults with special needs. It can minimize estate taxes, and is harder to contest than a Will.

 

My parents have a Trust. Someone asked me if it is funded; what does that mean?

Funding is simply re-titling all of your parents’ assets (stocks, bonds, bank account, real estate, etc) into their Trust. If their Trust is not funded and they pass away, then their assets will have to be probated.

 

My young daughter has special needs. In the event something should happen to my husband and I, we want to leave her something but we are concerned about disturbing her government benefits. Is there anything we can do?

Yes, you can set up a Special Needs Trust for her. If your special needs daughter were to receive an inheritance of more than $2,000.00, it could jeopardize her government benefits. The use of a Special Needs Trust will allow her to maintain eligibility for government benefits and allow the inheritance to supplement her needs (purchase a vehicle, appliances, electronic equipment, vacations, etc).

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