Change of Pace. November 2018.
By Timothy S. Barkley, Sr.
The threesome came through the door slowly, helping along Mom on her walker. The attorney welcomed them back to the conference room, helped to seat Mom and stow her hardware. The trio declined coffee or tea, but Mom accepted a glass of water.
A tall middle-aged woman, obviously accustomed to her role as spokesperson for the group, provided introductions. “I’m Susan, this is Ricky my brother, and this is our Mom. She’s been living alone since Dad died in 2004, but can’t stay by herself anymore since she had a stroke in January. She’s just gotten out of rehab and we’ve decided that she needs to go into assisted living.”
I looked at Mom. She nodded unhappily. “I don’t want to move, but it’s probably best. Susan knows what is best.”
Ricky felt the need to speak. “Our brother Bob is in Texas, and agrees. There’s another sister, but nobody knows where she is. Her name is Mary. She hasn’t spoken to any of us since before Dad died. She didn’t even come to the funeral.”
There was a brief silence, filled by Susan: “We’ve been checking out assisted living places. We’ve found a couple that we like, and we’ve been looking at their paperwork. We have some questions.
First is, Mom can’t sign her name after her stroke. If we sign the paperwork for Mom, can we be made responsible for the fees if she runs out of money?”
The attorney shook his head. “Usually not. You can agree to be liable, but they can’t hide it in the contract. Federal law requires that any agreement like that be very clear and separately signed.
I’d be happy to review the contract when you settle on the right place for Mom, to make sure there are no surprises.”
“Good,” Susan nodded and consulted the back of an envelope. “Our second question is, can they make her move if she runs out of money?”
“That depends,” said the attorney. “Some facilities are run by organizations that have a ‘continuing care’ provision – if Mom moves in, they promise that she can stay for the rest of her life as long as they can provide her care. You need to be sure that the facility you’re looking at can provide the kind of care you think Mom will need.
“A nursing home at a continuing care facility might accept Medicaid, or might not, but your mom might not qualify for Medicaid. To qualify for Medicaid, even after she runs out of money, Mom would have to require continuous skilled nursing care. If all she needed was custodial care – reminders to take her medications, help eating or getting into and out of bed – then she wouldn’t qualify.
“We’ll have to wait and see, but those are some questions to ask when you talk to the people at the facility.”
“Mom wants to make sure that the State or the nursing home doesn’t just take everything,” said Ricky.
“A lot of people worry about that,” affirmed the attorney, “but it’s a misconception.
“If Mom moves into a nursing home, she just has a big bill to pay every month. She pays it – or you pay it for her – just like every other bill. The scary thing is that Mom can’t decide when to stop paying the bill. It just keeps going on as long as she does.”
“What about putting our names on the house so the nursing home can’t get it?” asked Susan.
“I think that’s a bad idea for three reasons,” responded the lawyer. “First, since it doesn’t do your mom any good, it looks like you took her house. The State’s Attorney is on the lookout for financial abuse of the elderly, and the last thing you want to get is a criminal citation. And I’d worry about Mary – she could pop up at the worst possible time and make trouble.
“Second, if something bad happens to you, your creditor can take Mom’s house. Even if you would never take anything from your mother, and even if you knew you’d give the house back if Mom ever needed it, or needed to sell it, your creditor would take the house in a heartbeat. And you couldn’t give it back then – your creditor could force Mom to return it to you so they could sell it.
“Third, if Mom ever applied for Medicaid, the house transfer could disqualify her from receiving Medicaid. You could probably eliminate the disqualification by giving the house back, but only if you could still do that.”
“Mom and Dad didn’t work all their lives to have everything go to a nursing home,” protested Susan.
“I understand,” commiserated the lawyer, “but Medicaid is set up for people who can’t pay for their own care, not to pay for Mom’s care so her kids can get a bigger inheritance. The government Medicaid program only pays for care for people who are really poor, not people who make themselves poor.
“And remember that ‘the government’ doesn’t pay for anything. We do, with our taxes. You wouldn’t want your taxes to go up so my dad could give me his house, would you?” Susan and Ricky shook their heads.
“Let’s talk some more after you’ve made a decision about where Mom should live. I can fill you in on Medicaid and look over the paperwork to make sure you understand what you’re signing. Give me a call.”
Attorney Tim Barkley
The Tim Barkley Law Offices
One Park Avenue
P.O. Box 1136
Wills & Trusts | Estate Planning | Probates & Estates
Elder Law | Real Estate | Business Planning | Estate & Trust Litigation