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How would I go about allocating my grandparents life

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insurance policy trusts long term...
How would I go about allocating my grandparents life insurance policy trusts long term care policy etc. I am the durable poa health living will etc.
Submitted: 8 months ago.Category: Estate Law
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9/19/2017
Estate Lawyer: LegalGems, Attorney replied 8 months ago
LegalGems
LegalGems, Attorney
Category: Estate Law
Satisfied Customers: 12,962
Experience: Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

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Estate Lawyer: LegalGems, Attorney replied 8 months ago

The POA should state exactly what authority the agent has in regards ***** ***** principal's assets.

Basically the POA can take any action that is authorized by the POA.

The role is that of a fiduciary so the agent must act in the principal's best interest, so any funds would be used to pay for the principal's care, or to satisfy their legal financial obligations. A fiduciary duty means that the person in the fiduciary capacity owes a duty to the other person- and that the fiduciary must act in good faith, with the best intentions, to preserve any property that is at issue. Failure to act in this manner (essentially, a trust/guardian) is considered a "breach" and can result in:
1. removal of the fiduciary
2. sanctions (ie fines, award of attorney fees, etc)
3. damages (economic liability for the damages suffered by the party to whom the duty was owed)

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Customer reply replied 8 months ago
My Grand parents are still alive and in the nursing home and they are wanting to put them on medicaid and they told me I have to sell the house in order for them to be eligible for medicaid even tho I have TOD the beneficiary executer etc.
Estate Lawyer: LegalGems, Attorney replied 8 months ago

If the applicant intends to return to the home then that is a personal residence and is deemed exempt; here is that statute:

http://codes.ohio.gov/oac/5160:1-3-05.13v1

Intent is controlling; so even if the odds are high the person will not return to the home, the expressed intent exempts the residence.

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Estate Lawyer: LegalGems, Attorney replied 8 months ago

Please see specifically:

(2) The home is no longer considered to be the principal place of residence and shall be treated as a countable resource if the individual does not intend to return to the home.

(3) A temporary absence from the home does not affect the principal place of residence exclusion so long as the individual provides a signed statement of his or her intentions to return to the home and has not established permanent residence elsewhere.

(4) If the individual leaves the home with no intentions of returning, the home remains an excluded resource for as long as:

(a) A spouse or dependent relative of the individual continues to live there while the individual is receiving long-term care services, in accordance with Chapter 5160:1-6 of the Administrative Code.

(i) Dependency may be of any kind (e.g. financial, medical, etc.).

(ii) Relative means:

(a) Child, stepchild, or grandchild;

(b) Parent, stepparent, or grandparent;

(c) Aunt, uncle, niece, or nephew;

(d) Brother, sister, stepbrother or stepsister, half brother or half sister;

(e) Cousin; or

(f) In-law.

(b) Its sale would cause undue hardship, due to loss of housing for co-owner of the property and the co-owner provides a signed statement that he or she:

(i) Uses the property as his or her principal place of residence; and

(ii) Would have to move if the property were sold; and

(iii) Has no other living quarter readily available.

(c) The individual leaves his or her home due to domestic abuse and has not established a new principal place of residence, or has not taken action to render the home no longer excludable.

(d) The property satifies the provisions governing the treatment of property essential for self-support described in rule 5160:1-3-05.19 of the Administrative Code.

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Customer reply replied 8 months ago
Both grandparents are in nursing home not expected to return to home because of the homes shape and there health
Estate Lawyer: LegalGems, Attorney replied 8 months ago

The controlling issue is the expressed intent -not the ability to return home.

So if the application indicates no intent, then the home is not exempt

If the application indicates intent, then the home is exempt.

I'm sorry they are suffering from declining health.

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Estate Lawyer: Damien Bosco, Attorney replied 8 months ago
Damien Bosco
Damien Bosco, Attorney
Category: Estate Law
Satisfied Customers: 4,538
Experience: Attorney. Well versed, understanding, friendly
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Hi, Geneva: New expert here. The previous expert is correct. Your grandparents would not be forced to sell their home to qualify for Medicaid. Even if is your grandparents do not have the ability to return home, if they would like to return home, that would allow for the home to be exempt. A local attorney applying for the Medicaid on their behalf would be able to help you with the paperwork to protect the home. We can discuss more if you want to do so.

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