A senior citizen relative, "H", was financially exploited by a "friend." She was eventually found incapacitated and now has a court appointed guardian. By that time, her financial resources were exhausted. The guardian applied for Medicaid because H's Medicare benefits for rehab care ran out. During the 5 year lookback period, the "friend" used H's money as if it were her own, stole property from H's home, convinced H to transfer the title of a nearly new vehicle into her name, ordered costly items that were delivered to H's home and then removed, etc. After much pressure from family members, the guardian finally pushed for a police investigation of the perpetrator although H was not cooperative and insisted that the money and property appropriated by the friend were indeed gifts. The court appointed guardian now claims that she no longer needs to complete a 5-year lookback because she made a police report. The perp hasn't been charged yet, although the detective on the case has claimed that she will be charged. I am not sure that he ever WILL file charges. Now the guardian has directed him to stop communicating with the family about the case, claiming that she is H's "legal representative." Thus, it seems to me that there was NO effort to force the "friend" to make restitution of the funds as part of the Medicaid lookback, nor has the "friend" yet been charged with a crime. It appears to me that the perpetrator is quite possibly going to walk, managing to both bankrupt H and also avoid restitution. Is the guardian complicit in defrauding Medicaid? How should I report this?
Again, if you have issues with the court appointed guardian, you can pay for an experienced atty., who does guardianship litigation to challenge the appointment. It’s speciality legal, if I had to guess maybe a 10k retainer just as a start.
If by “liens being placed on property” you are referring to Medicaids Estate Recovery policy, aka MERP/MERS, that’s an after death situation that is very much interdependent on your states administrative code and probate laws as to what happens.
“H” is still alive, right? So MERP & it’s NOI, questionnaires, exemptions, exclusions, CBA not yet anything for the guardian or whomever named Executor as per H’s will yet to deal with.
“H” placed home as securitized collateral for the RM & realistically when she died or moved out of house, the terms of the RM are structured so that it never makes $ sense for her or family /heirs to repay. RM payout maybe 40-55% of assessed or appraisal value but with fees and interest and whatever else lender can add on,usually doubles the amount loaned. The guardian may hold a real estate license so would get paid the standard 3% commission. Most RM home don’t sell for above the RM total owed. Which for the RM co is fine as HUD pays any shortfall. To me the only way RM ever positive, is you get it appraised over value, you take all the $, dont pay a penny on the compliance requirements (taxes, insurance, repairs), walk away on property and retire abroad.
”H” did a RM, & if it was a HUD HECM (like 90+% of RMs), there now is required financial counseling done with Q&A that she had to go thru ahead of her ever signing off on RM & getting the $. She understood well enough to (it sounds like) select a line of credit RM, which is lesser evil type of RM imo. Guardian got rid of RM house ASAP as no benefit to keep the house. I’ll bet 2 cases of Prosecco, she was out of compliance with RM terms. Really guardian had to unload it ASAP. Settling RM & getting H into a NH with 24/7 oversight best plan.
& in the spirit to be helpful..... As one who has sat countless hours in various PCs in more than 1 state as Executor...... I’ve found that a judge really is not humored in being challenged to appointments done or orders signed off on or any other legal property filed to their court after a set # of days. If the current guardian has filed required reporting, the financials are sensible and transparent, the wards care plans from the NH show appropriate skilled nursing oversight ...... It’s going to be hard to get guardianship changed in my experience. But if you have the time, $$$ and energy, find a atty who does litigation and go for it. There will be an atty who will gladly take 5k, 10k whatever retainer from you.
But I’d bet a case of Prosecco that the guardians viewpoint was “what do I need to do ASAP and with the least amount of minutia to get this elder onto Medicaid and in a facility appropriate for his care needs”. Which was to file a police report & report was good enough for Medicaid eligibility. Guardian got him in a facility safe & sound; guardian did whatever to liquidate assets to get him spent down & ok for Medicaid. What DA, cops, etc do or don’t do, not guardians concern.
If the ward has assets, the court appointed guardian can be paid for their guardianship services from those assets. Just what compensation allowed depends on your state. Guardianship is kinda similar to Executor in that if there are assets, you can be paid for your services. I have not been a guardian but have been an executor 3X, & states have some sort of Executor compensation guidebook which is used as a template for what’s allowed..... like if it’s a % of value of assets OR a % of transactions OR a reasonable hourly rate for work performed. Some states you can opt to do a flat in/out rate, like TX is 5%. Compensation is taxable income. Guardianship seems to have a similar system, as it too is heard in probate court, so it could totally make sense for the guardian to get paid a % from property sale.
You don't like what guardian does, then again, hire an atty who does guardianship/ probate court litigation to challenge the appointment.
Also LTC Medicaid does NOT “come after children” per se when assets are transferred outside of Medicaid compliance. Medicaid places a transfer penalty on the LTC Medicaid applicant and the transfer penalty will be a # of days that the elder is ineligible for Medicaid even though they are now impoverished. The penalty is not on the POA or a grandkid that grannie gave $$$ to less than 5 years ago. The penalty & medicaid ineligibility lies solely on the elder. It ends up being a problem for the DPOA &/or family cause the NH has to get paid for the elder to live there.
Theres a Grannie gifted granddaughter her home saga with transfer penalty concerns on this very subject on this site in Nov & Dec.
Obviously the elderly are targets for financial exploitation. If we can’t get law enforcement to do anything about this, what else can we do? Vigilante justice? I have at least some hope that Medicaid could go after the scammer. I’ve read about Medicaid liens being placed against property and have repeatedly read on these forums about how inadvisable it is to try to pull anything cute on Medicaid because they WILL catch you. What’s wrong with this picture?
The guardian has done whatever needed (like police report) to have “H”, your relative file for & be approved to be eligible for Medicaid, right?
If this is the case, the guardian has done their job as they have gotten H to get Medicaid and has moved forward in the day-to-day oversight of their ward and wards safety, security and health care needs. It’s not guardians job to deal with revenge or do oversight on the police or DAs office or Medicaids administration.
Usually family/relatives are 1st choice when guardianship awarded.
That didn’t happen, right?
So why were you or other family not named guardian? there is a backstory IF an outside guardian was named and usually the reasons are not flattering to family.....
I’m going to suggest that you please calmly step back and try to look at this from the guardians viewpoint... which may well be that in guardians opinion you & your family did not do a basic familial duty for “H” for years and if one of the family was his POA when the theft / exploitation happened, they did not do their require fiduciary duty for “H”; and now after the clusterF, family wants to be all involved and wants vengeance. For guardian, your concern now is too late & your viewed as interfering with the legally appointed guardian decision making. If you keep this up, guardian can place a restraining order on your seeing “H”.
If you want to challenge the guardianship, you can.
Guardian has a set of required documents filed every 3, 6 or 12 months, and hearings in court based on your states laws. You - as a relative - can hire an attorney who does guardianship litigation to represent you to contest the current guardian. Your atty will likely ask for an “in chambers” meeting with probate court staff attorney to review all filings prior. A review (credit reports, job history, etc) on your suitably & that of your household can be requested by current guardian for them to present to court as to why a change should not happen. Guardianship litigation is specialty work, the retainer I’d guess in the 10k range.
No, it's not that anything is "wrong" with family. Sadly, aunt H had very little family left. She was helped by a great nephew and his wife for years -- he was her POA. Unfortunately, she was groomed by a scammer who basically helped her spend all of her money -- nephew and wife had been trying to help her conserve her assets for her future needs and the "friend" enabled her overspending habits. The "friend" also turned her against the family and convinced H that the nephew was just trying to get everything for himself in her inheritance. She finally cut off her nephew, changed her will and POA, obtained a reverse mortgage on her fairly modest home and immediately withdrew $50K which was gone in 3-4 months with nothing to show for it, etc. The few bank statements that the guardian obtained and allowed us to review showed numerous point of sale purchases from locations where H would not have been, unexplained large checks for cash or made out to the scammer's family members, etc.
For at least 3-4 years, Nephew had repeatedly tried to alert the county social services who were involved with her that she was being financially exploited. They would talk with her for 5 minutes and then say "she's ok." They didn't refer her for evaluation until about 3 years had elapsed and her financial ruination was irreversible. I'm related by marriage and found out about all of this very late in the process and of course, immediately tried to find what legal recourse was available to prosecute the scammer. After she cut off her nephew, there was no one in the family who could have been guardian. (I live hundreds of miles away). The family didn't object to the appointment, since in fact the nephew had been trying for years to report financial abuse, but the caregivers who were responsible for making such a report refused to, as I have described. Everyone agreed that the guardianship appointment was appropriate. It took a great deal of pressure for the guardian even to agree to cooperate with us in attempting to prosecute the offender. As it stands now, it is no longer clear that the detective is going to take the case to the prosecutor, the guardian has instructed him not to communicate with family members, and it looks like the scammer may walk away without making restitution.
If Medicaid "comes after" children and others when assets are transferred, shouldn't they "come after" a "friend" who convinced the woman to change the title of a nearly new car into her name "for insurance reasons" and who used H's money as if it were her own? The bank and credit card statements are hard evidence of the expenditures and neighbors witnessed furniture, tools, etc., being removed from the house when H was hospitalized.
Since I posted the question, I have discovered another portal which would allow me to complete an online form with allegations of senior financial abuse and Medicaid fraud. I do believe the guardian is complicit; I believe she gets something for the sale of the house, for instance, which happened before any attempt was made to recover from the scammer. Nobody is going to invest thousands to make this into a civil proceeding. Nobody has anything to gain. But if this can't be addressed criminally, the scammer can go on her merry way, along with her family who helped with the fleecing, and find another victim! This can't be right. It isn't just H whose financial resources have been exhausted, this mess fleeces Medicaid as well.