Mom's new POA forms says the agent can: Make gifts of present interest from my property to any family member taking into consideration the desirability of income tax deductions and planning and gifting to reduce potential estate tax liability, and preserving my assets from the cost of nursing home care; and reducing my assets to enable me to obtain any entitlement benefits, such as Medicaid, and it shall not be necessary that such donees receive equal amounts.
Part 2 continues : To take any and all steps needed to obtain, expedite and maximize any entitlement benefits and or medicaid contributions to the cost of nursing home care, including gifting assets to my family members.
To me this seems so wrong to tell the POA they can basically hide funds to make Mom Medicaid eligible? Or am I reading it wrong.
Her home was put in a Medicaid asset protection Irrevocable trust when she was 80.
Can someone clarify if this new POA was done correctly?
I would not touch Moms assets unless using for her care. If she wants to leave gifts, she leaves them in her Will. I would takevthis POA back to the lawyer who wrote it up and ask for an explanation.
if guardianship or conservatorship is needed mom wants my sister to also be the guardian and or conservator.
As a side note - mom has dementia and doesn't remember any of this.
And I received this document 17 months after they were prepared and signed. And they were in a plain envelope - not certified, registered or tracking.
I’m with the others that you need a CELA level an attorney with Medicaid expertise to review what the prior attorney did & review that Trust document too. Medicaid planning is way different legal approach than doing estate planning which is geared limiting tax exposure for the succession.
Not A Lawyer (aka NAL) but my take is this POA paperwork is worthless to use as an “out” should any transfer of assets be done within lookback period your State Medicaid uses for its LTC Medicaid program.
HOWEVER
What it seems to do in my NAL opinion is enable POA to screw over others….. so Let’s say MeMaw (100K in savings) has 3 kids and 5 grandkids; under powers of this document a POA daughter can use this POA to transfer MeMaws 398K house to her Son w/out any consideration for any of the other 4 grandkids or her 2 siblings. This POA could also have done $17,000 IRS annual gifting w/out IRS tax consequences for 2023 to her Son and Sonny’s wife (so $34K) and then do it again for this year but at the 2024 increase to 18K (so $36K) as it’s “taking consideration of tax liability”. POA gets mom down to 30K. And too bad, so sad for the rest of the family, they get zero and nothing they can do as the POA allows for this.
But tax liability not the same as Medicaid asset transfer penalty.
So if in Jan 2025, if MeMaw has a major fall & uses her 30K to pay for couple of months at a NH then has no more $$$ so goes to file for LTC Medicaid Spring, 2025, there will be a 468K transfer penalty attached to MeMaws application as all was done within past 5 years & within the 5 yr lookback that most States do for any application. Hell it’s within a 3 yr lookback if you’re in the couple of States that use a lower 3 yr marker. All - ALL - the details are recorded at the courthouse and in the bank statements that the caseworker has right in front of them. $468,000.00 transfer penalty done by days of ineligiblity based on your States daily room&board Medicaid reimbursement rate. If it’s $225 a day, that is a staggering 2,080 days of ineligibility.
As far a Medicaid is concerned what matters is what the current Administrative code and regulations for LTC Medicaid are; and if it’s a 5 yr lookback then too bad, so sad for that POA as she’s now stuck in this quagmire of either having to herself private pay for moms NH or she takes mom into her home to live for over 5 years and cobbles together caregivers as feasible. POA can’t make her Son give back the house or any of the $ either. Unless MeMaw is in CA there’s lookback issues.
Also you have got to realize if LTC Medicaid involved in the future, someone other than mom better be able to have the $ to pay for everything titled in the irrevocable Trust she did. Any have the $$$$ 2 pay for possibly years and years. Was this even brought up?
Find a real attorney who understands Medicaid and isn't trying to hide assets. And ask him or her to read over the documents and advise you properly.
Do you ever need an ATTORNEY for THIS ONE!
And you would need an attorney simply to understand that gifting, unless done BEFORE a 5 year lookback, is a HUGE PROBLEM, whether done by the POA or the principal.
See an attorney. As you will likely already know, the POA pays for this expert advice for you to manage all of this.
I have never met this lawyer, he just sent me the documents recently after they were signed 17 months ago. I was wondering why it took so long to send them to me. I have NOT acknowledged getting them from him as they were not sent certified or registered
Except every word of that is just a nice way to say "if I want to hide my money and let Medicaid pay for my care, I don't want my family or myself to have any kind of fallout from it and I want to write my POA in such as way as to legally prevent indemnification for said gifts...
And with Medicaid it simply does not work that way. They can write all the pretty words they want. But if those gifts are monetary or considered assets and are transferred during the Medicaid lookback period (generally 5 years from applying for Medicaid but it varies by state) - all the pretty words won't save the recipient or the giver from having a gap to cover.
What happens is that Medicaid looks at that amount given - and says "hmmm...you received X amount from dear old mom....and yeah we aren't going to pay that amount because that should have been used for HER care, not for you. So either you give it back...or you pay it privately for her care for the amount of time that amount of money would cover. OR if you can't do either - then you need to come get mom and figure something else out, because we aren't paying for that gap!"
And if a bunch of family members took money - then you will just keep having a gap. And you will keep having to fill it. So yeah. that legalese isn't going to help anyone!
& mom still lives there, right? CoPOA sibling lives elsewhere, right?
& recently a Codicil done & moms all confused on it?
Well again NAL, but to do a well crafted Trust - in my understanding - should have investment assets besides the house that “feed” income within the Trust to pay for Trusts (house) costs. & Trust has all assets titled so no after death things that need a will / codicil so need probate opened. You do a will simply because ya never know what might be stashed in the pages of a book & so SURPRiSE it’s old bonds or stock certificates. But well done Estate planning should be set up to shift all into the Trust &/or make everything else be made “beneficiary of” so no probate needed and no need for a codicil or for new POA to be ever be done as secondaries written into all documents originally. Everything dovetailing. If not, get fresh legal eyes on everything asap.
Have a ? for you?…. Back when house went into MaPTrust, did attorney explain clearly to you & sibling the Share of Cost copay aspects of LTC Medicaid? and what that could mean for property cost issues?… like did they go over over smallish Personal Needs Allowance that has a fixed list of what it can be used for? If not imho you have got to plan for who pays what when moms goes onto Medicaid and if it is equitably sustainable by you & your sibling.
LSS pls realize, an elder, once filing for LTC Medicaid, have zero $ to pay for house so someone in the family will need to cheerfully pay for everything “Trust house” till beyond the grave. If she has a life insurance policy with premiums still due, that too someone in the family will need to pay as well.
I’ve been on this forum a looooong time and over & over folks post that their parents placed the old home into a Trust, a Life Estate, a TOD, to go to a Lady Bird Deed upon death, etc. And they & sibs are feeling all fabulous about it. Then couple of years go by and parent enters a NH. And their regular SS $$$ income is flat not there because it now is copay to the NH. And elders savings is not there as they did a spend down to get to 2K in assets. Yet utilities, yard care, maintenance, insurance, property taxes, etc still exist on the house owned by the Trust which has no $ to pay for property costs. Kids are gobsmacked. If sibling does not have the $ or inclination to pay their share, would you be ok on paying for all for an unknown period of time knowing that the division of the Trust property will be whatever was written in Trust originally?
What seems to happen is all kinda ok till tax bill on the empty house comes due. That’s the tipping point. It may not be your sibling that is loathe but their spouse who could care less on paying a penny on the place or going over to make sure yard got cut. If you live in another city, having to take on property management time and co$t$ for years & years may not be feasible. A house with 10K in annual costs to stay securely shuttered & insured way different than one that needs 30K in a sketchy neighborhood.
If mom rents it, must be a fair market rate & is reportable income to her which Medicaid must be notified of.
Mom did a HIPPA form as well with me as one who could access her records and talk to drs. But this letter from the new lawyer says that form is invalid as of the day of the new signing. Mom doesn't remember any of this and can't understand money now and lack of because of the spending going on now.
For the house, my sister did miss 3 mortgage payments which meant the taxes weren't paid so I paid the missed mortgage payments, late fees and the taxes. But I can't continue that unless I knew I would be paid back.
Her trust stipulates the percentage each sibling will get. BUT now, the new will (which I haven't seen) says how the house will be split. - this is according to another sibling who has seen it. That is why I don't think the new lawyer was given the trust documents.
Based on that which would be valid first, the trust from 2016 or the new will. It is a disaster and my sister has no problem whatsoever spending mom's money on anything any of them need while only paying for mom's food and utilities. they spend her SS and pension down to a few hundred dollars each. month. THEY just run around with moms debit card and ACH transfer large sums.
She lives in a nice neighborhood and only has a mortgage of 35000 left.
For getting paid back, I meant down the road from the estate. Not now while mom might need her funds for care. It just infuriates me that siblings are spending every dime not thinking about moms future needs and I am saving her house.
I guess it all stems from her new lawyer who typed up the document giving POA full reign to drain mom's account.;
Only way - in my NAL opinion- around this is to formally dissolve it. & that will it not be at all easy to properly do even by an atty.
However it might can be and does happen often inadvertently when property taxes are not paid and not paid to the point of it being totally able to have its title transferred to someone holding an actual tax sale deed redemption and they file to have it title transferred to them. It takes years of sequential delinquency for this to happen though. That is not happening to your moms place as that mortgage holder would sweep in and do a foreclosure ahead of something like this ever happening. But pay attention to this because once that mortgage is paid off, then it’s on someone to make sure prop taxes are paid and paid on time as your Sister more than likely won’t…. She comes across as the type that would end up loosing the place to tax sale and be all whining abt the “unfairness”.
I’m in agreement with you that Sissy did not share the Trust document with that new attorney she got to do rewrites. Imo any semi decent attorney would not have done that new PoA document without some verbiage as to the asset that is a IRREVOCABLE Trust being called out within the document in someway. And any nonidiot atty would have done a cursory courthouse records search to see what assets the person had….. & not necessarily all done in your interest but for them to make sure there’s something they they can file a lien onto should you not pay.
Your new atty will have a field day with all this. Like who finds their atty in a parking lot? It not even Better Call Saul stuff.
Question for you, so you are in CT, right? So is mom perchance in NYS? So this is a NYS MAPT? If so, is her “home” a traditional residence or is it actually a co-op? I ask as I’ve known someone who went down this rabbit hole. MAPT are encouraged to be done for anyone in a co-op…. like the co-op board flat gives residents an edict to go get one done. Has to do with how coops “ownerships” held.