The following information was discussed by Attorney Whitney Hughes on the November 1, 2011 edition of Legal Briefs on KDKA's Pittsburgh Today Live Show.
Many of us will be spending time with our elderly family members over the next few months during the holidays. This may present the perfect time to re-evaluate their living situations and discuss any future long term planning that needs to be done. The following are some common questions and some helpful tips in navigating through this sometimes confusing area of law.
How can I make sure I can collect benefits to pay for my nursing home stay and still preserve assets like my home?
Public assistance programs such as Medicaid and Medicare will allow you to receive benefits while you are in a nursing home and still allow you to keep a home to return to when your stay there ends. When you apply for benefits prior to a nursing home stay simply check the box on the application that says “I intend to return home.”
I’m considering making gifts to my family members to make sure I qualify to receive benefits. Is this a good idea?
Don’t assume that giving things away will prevent the state from having any asset to go after when you’re gone, or that you must give everything away to be “low income enough” to qualify for benefits. The government has a “look back” period which means they will look back over the past five years to see what assets you have gotten rid of in order to qualify for benefits. In addition to this, there are many assets that the government can not consider such as your home and your spouse’s 401K and retirement benefits. Again, any action you take may have drastically different consequences than those you intended. Always run any decision by an attorney first.
My elderly parent needs continuing care which I am not in a position to provide. What do I need to know about choosing a nursing home?
Keep in mind that your alternatives for assistance diminish once your loved one is discharged from the hospital. If you know that he/she is facing a situation where he/she will require continuing care, contact an attorney to make sure benefits are secured and that his/her assets are protected.
Always review admissions agreements carefully. They may contain clauses that impact your rights and liabilities in the future. For instance, some may contain clauses in which you personally guarantee payment. Others may contain arbitration clauses in which you waive your right to a jury trial in the event your loved one is abused or injured while in their care.
These are all things you will not be looking for during a stressful and emotional time. Always take any admissions agreement to an attorney to have him/her review it prior to signing or placing a loved one in their care.
My sibling has a power of attorney for my father but is making some questionable decisions with his finances. What can I do?
A power of attorney is a powerful document which unfortunately is easily abused if not drafted correctly. Powers of attorney can be as specific or as general as you need them to be and can include clauses which require a third party to review and/or give their consent before any major financial or legal transactions take place.
If a power of attorney is being abused, it can be revoked. A document will have to be drafted by your father in which he revokes the power and then this document will have to be given to anyone that the power of attorney has dealt with on your father’s behalf. This is something that you will want to have an attorney handle to ensure that no further detrimental actions are taken.
My mother has made out her will and I have been told I will inherit nothing when she dies. I think she has been influenced by my siblings with whom I have been feuding for years. What can I do?
Keep in mind that in the eyes of the law a person’s property and assets are their own and they can do with them as they wish. Neither a spouse nor a child is entitled to inherit all or a specific share of an estate when someone dies. A parent CAN disinherit a child.
In addition, a will can be changed up until the time of death. Even if you have been told for the last year that you will receive nothing, it is entirely possible that your parent could change the will to include you. That being said there is very little that you can do while your parent is still alive to ensure that you receive something when they die.
Once he/she has passed away, you may contest the will, however you will need to demonstrate that he/she lacked the capacity to make out the will, and/or that he/she was unduly influenced to draft his/her will in such a fashion and that he/she would not have drafted the will that way but for the influence of the other party. These are usually VERY difficult burdens to meet especially when there are strained or distant family relations.
In addition, will contests are usually quite expensive as well and may not always be successful.
Never underestimate the importance of keeping the lines of communication open and don’t assume that you are entitled to anything.
If you feel that your loved one is being influenced by someone, speak with him/her about it and make sure that there is no document such as a power of attorney which is being abused.
As always, if you have any questions about elder law issues, estate planning, or powers of attorney, contact the Allegheny County Bar Association Lawyer Referral Service.