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Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 36222
Experience:  16 years real estate, Realtor. Landlord 26 years
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I am Power of Attorney father. He is 92 years of age.

Customer Question

I am Power of Attorney for my father. He is 92 years of age. I have one living brother. I am the care-giver to my father. He has a small farm which has already been divided in his will between my brother and myself, plus the money in his checking account. I am trying to keep my father at home as long as possible. I do not want to put him in a Nursing Home at this point in time. Everything is still in my father's name. What options are there to prevent (if the time comes) the Nursing Home from taking everything that he owns? Are there living trust wills, etc? Can he deed everything to me as his POA and also Executor of His Estate at this point in time?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Barrister replied 1 year ago.
Hello and welcome! My name is ***** ***** I will try my level best to help with your situation or get you to someone who can.
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Do you anticipate father needing to go into a nursing home in the next 5 years?
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Would he be applying for Medicaid to pay for any long term care?
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thanks
Barrister
Customer: replied 1 year ago.
If his health continues to decline and I can no longer care for him at home, I anticipate that might happen. He will be 93 years of age on July 28, 2015. I am trying to keep the small farm in the family and if he has to go to a Nursing Home, I know his money will run out, then they will take the farm to pay his expense before we could apply for Medicaid. He has no long-term care insurance of any kind. He would never talk about things like this in the past and he still has it in his mind that they wouldn't take a farm from an "old man."
Customer: replied 1 year ago.
Are you there Barrister? I'm not sure I have done everything correct on this site.
Expert:  Barrister replied 1 year ago.
Sorry for the delay, it takes a bit to type out a thorough answer..
Ok, I am going to have to tell you some things that I personally don't agree with, but they are the law, so please don't "shoot the messenger".
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If he needs to go into long term care, then he would have to pay for his own care out of his assets until they are depleted down to $2,000 before Medicaid would then kick in to pay for any care.
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If he has assets like the farm or other real estate in his name, excluding his home, Medicaid would refuse to pay for anything until those assets had been exhausted.
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If he has a home, they would then lien the home for any benefits that they pay and then require his estate to pay off the lien after he passes to reimburse Medicaid for any benefits.
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They have a 60 month "lookback period" where they examine an applicants asset transfers and will deny benefits if they see transfers out of his name within that 60 months for the number of months that equals the asset value divided by monthly care costs.
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So if he transferred $100K out of his name, and care costs are $5K a month, they would deny benefits for 20 months.
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The only way that you could potentially avoid having to use all his assets for any long term care would be to transfer them immediately and then provide care for him or pay for his care personally until he hit that 60 month time limit. So for example, if everything was transferred out of his name and you can care for him for 3 more years, and then pay for private care for 2 more, then he could be eligible for Medicaid for any care costs after that.
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But any transfer of assets start the 60 month clock, so sooner is better if you want to try to protect some portion of his estate.
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I think it is inherently unfair to force someone to spend a lifetime of savings in their last few years for their care, but apparently the legislators (who get platinum health care free for life) apparently disagree with my thoughts on the matter.
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thanks
Barrister
Customer: replied 1 year ago.
O.K. All of that makes sense and I had a little understanding that's how it worked. I knew something about the "60 month" thing, but also know that my cousin was in the same position with her mother going into the Nursing Home and they somehow wiggled through the system somehow and Medicaid has paid for everything. My name is ***** ***** father's checking account as his POA. How would I start the "process" of transferring money, farm, etc? Would I transfer it to my name? Is that called some type of "living will trust fund?" Then, would I be responsible for taxes, etc? You are so right--someone who has worked all their life and has saved a little money and has a small portion of land shouldn't have to give it all to the Government to pay for their final days on this earth! I'm sure it sounds to you as if I am a greedy person, but I am only trying to save the little farm where I grew up, so that I can pass it on to my children and grandchildren. I have always told my father that I would care of him until the day came that I couldn't, then we would have to make other arrangements. So, that's what I'm trying to do. If he lives 5 more years, then I will have taken care of him and still keep the farm. What would be the very first step for me to take? Again, how do I do the transfer?? What about all the inheritance taxes in this process??
Customer: replied 1 year ago.
Have I asked too many questions? You have been very helpful thus far. Now, I suppose I have to hire a lawyer to get this process going, correct? Thank you for your information if we are at the end of our conversation.
Expert:  Barrister replied 1 year ago.
Sorry for the delay, had to log off as I had my normal job and it was getting late..
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My name is ***** ***** father's checking account as his POA. How would I start the "process" of transferring money, farm, etc? Would I transfer it to my name?
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Yes, either to your name or to you and siblings. Real estate is deeded over to transfer it and any local real estate attorney could assist with drafting a deed for around $100-150. Checking accounts can just be closed and then a new one opened in your name just to hold those funds.
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A living will is just a document that gives the holder the power to make medical decisions for the grantor of that power. So that has nothing to do with assets. A living trust is another way to get assets out of someone's name, but it has to be irrevocable (not able to ever be changed) because if it is "revocable" it provides no protection whatsoever from Medicaid claims.
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So whether the assets are transferred to someone else personally or to an irrevocable trust, the main idea is to get them entirely out of father's name so he has no legal connection to them so as to start the clock.
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I think putting them in an individual's name would be better because that can make it easier to liquidate them if it is necessary to do so to pay for care.
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As for inheritance taxes, this isn't an inheritance, it is a transfer while he is alive. So legally it would be a gift from him to you and he could avoid any gift taxes by filing an IRS Form 709 with his taxes and use up some portion of his $5.34 million dollar lifetime gift tax exemption.
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thanks
Barrister

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