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Legalease
Legalease, Attorney
Category: Estate Law
Satisfied Customers: 14615
Experience:  15 yrs experience: Elder Law, Wills, Social Security Issues
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Another question, my husband has dementia and he is rapidly

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Another question, my husband has dementia and he is rapidly going down hill. I have found a day care, but have yet to take him. Looking ahead. to protect my assets in our monies, should I consider divorce before putting him in a real nursing home. I've been told it would probably be less than a year until I can no longer take care of him in our home. I live in Missouri fyi. Is there a time frame involved. I do not want to be without my home and adequate finances to live here. I have worked long and hard and made more money in my lifetime than he has so I want to protect what I have put aside for myself. I don't want to throw him to the dogs, but need to protect my interest as I am 69 and in fairly good health. We have been married almost 52 years and I have no intention of putting him out, am I between a rock and a hard spot. How does the nursing home system work in Mo as far as paydown before medicare starts paying? What can I keep and what goes for the nursing home. PS my car is 10 years old and needs to be replaced. Should I go get a newer one and pay for it out of his money. We have separate IRAS, annuities, I have a roth and a 401K that I am still paying into. I do not want to live with my children, I would feel like I was a servant or a kept person. I am active and have a social life, I just take my husband with me whenever I go anywhere.
He is physically in good health, but does not remember day,month,year, whether hot water is on the left or the right, is now not remembering our children and in-laws names, doesn't recognize some of grandchildren, can't remember what he did 5 minutes ago.
I feel I need lots of legal help to maximize my interest without hurting him and his interests. Thanks a bunch if you can struggle thru my letter as I am stressing a bit. \
Submitted: 1 year ago.
Category: Estate Law
Expert:  Legalease replied 1 year ago.

Hello there

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Is there any other property in the both names?

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Has he / you been making regular withdrawals from his annuities/401k's etc.

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When you put the house in trust and had other docs prepared regarding the estate, did you use an attorney at that time?

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MARY

Customer: replied 1 year ago.

Car, popup camper


He has been making regular withdrawals from his accounts


I should start making them this month from my ira


Yes we used an elder law attorney

Expert:  Legalease replied 1 year ago.

Hello again Diane --

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I apologize for the delay -- I was offline for a while. When considering nursing home care and the Medicaid system, the federal government's Medicaid program will make him spend down his assets before they will pay for any of the nursing home care. There are a few legal maneuvers that can be made by the patient and spouse in order to try to avoid losing everything that you have worked for. Putting the house in trust was a good idea but if he goes into the nursing home before 2016, Medicaid has the legal right to perform a five year "look back" as of the date of nursing home entry and any assets that were transferred out of the name of the patient can, in many instances, be brought back into the patient's estate and the value can be claimed by Medicaid as an asset to be placed towards the nursing home fees (prior to 2005, it was a 3 year lookback, but President Bush decided that it should be a 5 year lookback and that is the current number of years on the lookback). So, if your husband goes into the nursing home before the 5 years has passed, the house trust will be discounted by Medicare and for all intents and purposes you and he will still be the owners of the house. If that happens, then the amount of money the house is appraised at can be used by Medicare towards nursing home "payments" - and it is your decision whether or not to pay the nursing home fees out of the proceeds from the sale of the home or if you want to use other assets to pay the fees until a later date that Medicare has set as the date that the full value of the house has been spent down for the medical and nursing home bills. Now, if your husband is able to live outside of a nursing facility through the five year look back period, then the house will be safe from the Medicare look back rules and the trust will stand. In the event of his entering the nursing home before the look back period is over, there is an exception to the rules regarding the federal government's right to either use house proceeds to pay for the care OR to include the amount in his assets (requiring him to spend down that amount on the nursing home bills before he could qualify for Medicaid). The spouse or the child of the patient who has lived in the house with the patient for more than 2 years prior to the nursing home entry date is entitled to receive the transfer of the patient's interest in the primary residence and it will not be forefeited to Medicare or used in the calculation to determine when he can receive Medicare benefits to pay for the nursing home care. So, in your case it appears that if you do not qualify to retain the house or the value of the house under the look back rule, you will be entitled to his portion of the house by virtue of your role as caretaker to him before he entered the nursing home (you want to keep detailed records and a journal to show your caretaking duties for as long as possible leading up to the date that he moves into the nursing home so that you can show the federal government that you are the only one who was the primary caretaker in the primary residence. Other than the primary residence, if there are any second homes or timeshares, they will require a sale to pay for the nursing care or the family to make up the value of the additional second property towards the Medicare spend down amount.

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Regarding his assets -- Medicare will require that any amounts of money solely in his name to be used for medical and nursing home care bills before they will permit him to qualify for Medicare. At this point, because you believe that he is only about a year or so away from needing full time nursing home care, any large depletions of his assets or large expenditures from his assets can be reviewed for the year prior to his entering the nursing home and the federal government may charge that you and your family fraudulently moved or depleted his assets to avoid paying the bills in the legitimate spend down period after he enters the nursing home. There are exceptions to these rules also and a large expenditure for a car from his assets can be shown to be a necessary expense particularly if you must drive him to doctors appointments and everywhere else that he needs to go while he is still able to live at home. My suggestion to you regarding his assets is to contact a local estate law elder law attorney in your area and have a sit down consultation regarding what expenditures are appropriate and necessary in the year or so leading up to the nursing home admission and keep detailed records and documentation of any such expenditures in the event that any of the expenditures may raise a red flag and possibly set them off into an in depth of review of your finances at any point before or after you apply for the Medicare benefits for him.

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MARY

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Legalease, Attorney
Category: Estate Law
Satisfied Customers: 14615
Experience: 15 yrs experience: Elder Law, Wills, Social Security Issues
Legalease and 2 other Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

I just feel like I will be a caregiver until I give out. When I ask him to stay in one place while I go to the bathroom or to go get a coke or drink, he may or may not be there when I come back. He says, "Well I didn't know where you were, so I went looking for you." Even if I tell him previously where I am going or even when I write him a note that tells him where I am going. He has wandered in the neighborhood, but neighbors have alerted me and I have found him quickly. I just feel I am between a rock and a hard spot, and it is an uncomfortable feeling.

Expert:  Legalease replied 1 year ago.

Hello again Diane --

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It is not easy to be a caregiver (my mother suffered from emphysema for 7 years and I cared for her until she died) - and no one even understands the time period after the ill person passes away - it is like having post traumatic stress disorder. You have my sympathy on this you really do. Please get to a lawyer to talk about spending down his assets because you want to save as much as you can for you and your children.

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MARY

Legalease, Attorney
Category: Estate Law
Satisfied Customers: 14615
Experience: 15 yrs experience: Elder Law, Wills, Social Security Issues
Legalease and 2 other Estate Law Specialists are ready to help you

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15 yrs experience: Elder Law, Wills, Social Security Issues