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Mail Call: Answers To Your Estate Planning Questions

(Not Edited For Spelling Or Punctuation) (Note: Not Legal Advice!)

Long answers are boring, short punchy answers are fun! Time for some fun…

LETTER #1

How should I word a letter to say I withdraw specific grants of authority on a POA?

I am primary agent on my father’s POA, but need to produce a letter that says I will not act as agent with respect to obtaining financial assistance from or communicating with Medicaid. Is that wording correct? Do I have to title it as an affidavit?

The Answer Is: “With Great Power Comes Great Responsibility”

Do Not Do This Bad, Awful, Evil Thing

Point #1 This is total BULL. You have been given the great power to make your father’s remaining life a life worth living. You are being asked to throw away that power, to sacrifice your father’s well-being.
Your father granted you authority to make decisions on his behalf. You accepted that responsibility. You have a duty to your father to exercise the authority you have been given in your father’s best interest. Your father’s best interest. Not the interest of somebody who wants to take advantage of your father.

Point #2 Who is asking for this? Who says you “need to produce a letter”? No reputable care facility would ask for this. No one who cares about your father would ask for this. There is no GOOD reason for anyone would ask for you to give up your father’s entitlement to federal health care benefits. There are lots of BAD reasons, though.

Point #3 Middle-class America already won this fight. Back in the day (as the kids say)(or used to say)(or never said but I thought they did)… When I first started doing this stuff, 31 years ago, it was not uncommon to see demands like this in long-term care contracts. The State of Ohio even prohibited Medicaid recipients from speaking with attorneys about their benefits. All blatantly wrong. All clearly illegal. Federal law is clear: no one can require you to give up your federal health care benefits. And that means you cannot give up your father’s federal health care benefits. You do not “need” to produce any such letter. Whoever asked for the letter was probably breaking federal law.

Point #4 Medicaid simply is the way America pays for long-term care.

  • Folks spend themselves into nursing home poverty.
  • Savings exhausted, farm sold, cottage gone, destitute.
  • Apply for Medicaid.
  • Get base level of care, paid by Medicaid.

Point #5 Middle-class savers can obtain Medicaid benefits in full compliance with state and federal law without going broke. Your savings can supplement Medicaid so that you receive the highest level of care, tailored to your unique needs.

Point #6. Private Pay Rates are about 50% higher than Medicaid rates for the same services. Reality Check: Look at your last medical or hospital bill. Do you think the hospital is paying $12 per aspirin?

Conclusion: Do not betray your father. Dear old Dad trusted you to act in his best interest. Accept the great responsibility that comes with great power. Make his remaining time on this planet the best time of his life.


LETTER #2

My husband’s step grandmother died in August. Her son (not our blood relative obviously) contacted us as the executor.?

He told us that he is distributing the proceeds of her estate and that he is sending us a check, even though we are not named as beneficiaries. My mother-in-law is livid (she has a number of mental and health issues) she cares for her disabled brother (both are beneficiaries) he is concerned she is not adequately caring for her brother. She is demanding that we not accept the check. What should we do here??

The Answer Is: Only Santa Claus Can Give Things Away for Free

You know you are not a beneficiary. If the money you are receiving was supposed to go to other people, that is a problem.

Point #1 Most folks do not leave money to grandchildren. And it is even more unusual to include step-grandchildren. As you observe, your husband is not a relative or named beneficiary. It is hard to see that he has any entitlement to a distribution.

Point #2 Your mother-in-law and her disabled brother appear to be children of the deceased step-grandmother. They are legitimate beneficiaries.

Point #3 If somebody is giving away your inheritance, you are justified in getting hot under the collar. BONUS POINTS: Extra aggravation if your disabled brother’s inheritance is being given away. Especially when you are caring for said disabled brother.

Point #4 Proper estate distribution is up to the personal representative (aka executor). Unless you acted improperly, distribution problems are on the executor-brother.

Head-scratcher: What the hell is going on here? See Point #1. This is strange.

Possibility #1: The executor-step-uncle is giving a portion of the executor-step-uncle’s own share to your husband. If so, no problem.

Possibility #2 The executor-step-uncle is making an unauthorized distribution of the estate. If so, the Probate Court could order your husband to disgorge the money. Also, executor-step-uncle is in deep doo-doo.

Conclusion: “Livid” mothers-in-law with “a number of mental and health issues” are not always wrong. Find out whether executor-step-uncle has any legal basis to make the distribution. If no legal basis can be determined by your own lawyer, do not take the money. Better safe than sorry.


LETTER #3

Can an executrix of a will evict a sibling who is also a beneficiary and has lived in the house for 40 years?

My ex-husband has been unable to work for the past 10 years in order to take care of his 99-year-old dad. He passed late last year. His sister took her dad to a lawyer when he was about 90 to create a will. 70% her/30% him. Ex-husband has lived in the very modest home for 40 years. He has no means to start over.

She is the owner of 2 homes and made enough money to retire at 59 (probably not relevant).

The Answer Is: Yes.

Point #1 Father opened his home to son for 30 years before father needed son’s help. Perhaps that helps explain the 70/30 split. Maybe sister isn’t such a “rhymes with witch” after all…

Point #2 Nowadays it is not so unusual to have the holdover tenant child. The kid moves home for a week. Or two. Or THIRTY YEARS! How is it that the kid could not save an apartment rental deposit in thirty years of working plus ten more years of not working and living off dad’s social security and pension. Jeepers!!

Point #3 Eviction is the remedy. In my experience, the “Irish Bachelor” son or daughter has no intention of going soft into that good night of leases, mortgages, rent and maintenance. EEEK! Responsibility! Oh no! Oysters have less attachment to their shells. Frequently the other siblings let “Timmy” stay in the house after the funeral. “For a little while.” Five years later somebody wakes up to the fact that Timmy ain’t goin’ nowhere! Far from being grateful, Timmy is angry that anyone has figured it out…

Point #4 The COVID moratorium on evictions is still in effect. That means you cannot legally evict Timmy. Serve him with the eviction papers anyway. You could try reasoning with Timmy. It will not do any good. At least you can get your ducks in a row for the moment evictions are once more possible.

Point #5 If dad had put Timmy on the deed, you could never get him out. So do not put your kids on deeds.

Point #6 A parent can give a caregiver child the house without screwing up their own Medicaid. The key is that the child has to reside with the parent and provide two (2) years of care services that keep the parent out of the nursing home.

Conclusion: There are dangers and opportunities when a child moves home. Mostly dangers. Consult with your friendly, neighborhood elder law attorney to avoid the mistakes and maximize the advantages.

YOU CHOOSE!

Applying for benefits does not mean Nursing Home Poverty or silly Spend Down. Learn how to preserve your loved one’s lifesavings, business, cottage, life insurance. Thousands of middle-class families have learned and use these techniques. Why not yours?