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LawTalk
LawTalk, Attorney and Counselor at Law
Category: Family Law
Satisfied Customers: 35390
Experience:  30 years legal experience. I remain current in Family Law through regular continuing education.
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I'm not sure this falls under family law or elder law. I

Customer Question

I'm not sure this falls under family law or elder law. I have lived with a man for 30 years and he has had Alzheimer's for 3 years. I'm his legal guardian and sole caretaker. He has an annuity for $100,000 and we will need to cash it out soon. My question is if he uses half the money and some of mine to buy a house does it have to have his name on the deed, and can we then sell the house we own together and he would get his half back which would go to a nursing home. Is there a chance we wouldn't be penalized for cashing the annuity and is the 2nd house exempt from nursing costs if one of us lives there? Thank you.
Submitted: 1 year ago.
Category: Family Law
Expert:  LawTalk replied 1 year ago.

Good afternoon,

I'm Doug, and I'm very sorry to hear of you and your partner's situation. My goal is to provide you with excellent service today.

This seems like a very crucial matter for you, and your questions and issues suggest that an in-depth conversation might best suit your needs. If you are interested, for a nominal charge I can offer you a phone conference as opposed to continuing in this question and answer thread. I will make that offer to you after I get this posted to your question thread. All you need do is accept the offer if you would like me to call. Let me know if you don't want a call and I can continue here with an answer.

In order to give you a clear and concise answer, I will need some additional information about the circumstances, please.

1. Does your partner have any children who are disabled?

2. Are you perhaps married, either formally or under any state's common law marriage statute?

3. Did a court appoint you as legal guardian?

4. What is the status of his disease process? Is he legally competent or has a court ruled him incompetent?

5. Why will the annuity need to be cashed out soon?

Thanks in advance,

Doug

Customer: replied 1 year ago.
No, he has no children. We are not married and there is no common law in Wisconsin. The court did appoint me his legal guardian and declared him incompetent. We do need to cash the annuity soon.
Expert:  LawTalk replied 1 year ago.

Good afternoon,

You have an extremely complex and complicated situation that you are facing and I believe that it is best discussed over the phone. The alternative is that we may have to go back and forth for hours to deal with all the legal issues I see in your situation.

Would you please consider accepting my offer of the phone call? I truly believe that is the best way for me to assist you in understanding all that you face in the immediate future.

Doug

Customer: replied 1 year ago.
I guess everything is a scam to an extent. You charged me $47 and didn't answer my question and now you want another $14 to talk to me on the phone.
Expert:  LawTalk replied 1 year ago.

Good afternoon,

I assure you this is not a scam. I am more than willing to communicate with you here in the thread. I merely offer the option of a call if you would like it.

However, your situation is tremendously complex as you are not married, you have a court imposed duty to deal with your ward's finances in a professional manner and not use any of his money to your own personal benefit. I see a potential for you to actually be criminally charged if you proceed in the way you have suggested. Complicating matters more, his legal incompetence and declining health suggest that he may well be in a nursing home in less than 5 years and if his money is not accounted for and spent appropriately, he could be denied medicaid benefits to pay for the nursing home care that he may need.

I'm not even sure where to start---but I will try.

Expert:  LawTalk replied 1 year ago.

Hi,

1. Because you are not married, and because you are his legal guardian, you must exercise the utmost of fiduciary obligation to him in the handling of his money.

2. You fiduciary obligation would preclude you from using his money to buy a home that you would place your name on as well. You may not legally use any of his assets to benefit yourself directly.

3. And yes, if you use any of his money to buy a piece of real property, his name must be on the title to that property. And it would almost certainly be improper for you to add your name to the property as well. You don't have the right to enter into a business transaction with him that may not be in his absolute best interest.

4. Technically, while he is living, if the two of you were to "legitimately" own a property together, Medicaid would not force the sale of the property but would lien it and wait to collect until after his death. However, they would look at the totality of the situation---see that you used his money to buy a property for you to live in, and perhaps take the position that his money had been misused and then seek to avoid payment of the nursing home bills.

You ask about a penalty for cashing in the annuity and I am not sure what you mean---who would assert a penalty?

The simple fact is that as you are not married, and that anything that you use his money for that in any way benefits you will raise a red flag and he could lose the ability to have Medicaid pay bills---at least for a period of time. Perhaps just as importantly, it could be determined by a state prosecutor that you misappropriated funds belonging to your ward and that could lead to criminal charges for Elder Financial Abuse or even possibly Embezzlement.

You may reply back to me again if you have additional questions, and I will continue to assist you.

I wish you and yours the best in 2015,

Doug

Customer: replied 1 year ago.
One more question has come up. Wisconsin allows caregivers to be paid up to $20000 a year if you live in the same house. Medicaid has such programs but if the person has money you can make a contract with them and them paying you would be a legitimate expense not affecting Medicaid in the future. The question is can I be paid now for the past 3 years?
Expert:  LawTalk replied 1 year ago.

Good evening,

You wrote: Wisconsin allows caregivers to be paid up to $20000 a year if you live in the same house. Medicaid has such programs but if the person has money you can make a contract with them and them paying you would be a legitimate expense not affecting Medicaid in the future.

Your statement is correct. However, you would literally have to seek the permission of the court in order to even consider making such a claim against your ward for the payment. This is because your ward is legally incompetent and therefore unable to contract, and under the law you lack the legal ability to make that contract on his behalf with yourself. That would be seen as misappropriation of his funds without a specific court order allowing you to do that.

You certainly could petition the court to be paid for the services that you have provided---however I'm not sure that you could convince a judge to award you this payment retroactively, but perhaps only into the future from the date of the filing of your petition.

You may reply back to me using the Reply link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Please remember to rate my service to you so that I can be compensated for helping you. Thank you in advance.

I wish you and yours the best in 2015,

Doug

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