Are there personal financial risks in petitioning for guardianship for elderly parent?

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I’m consulting with an elder law attorney and they have informed me that I will not be liable out of my own funds for mom’s nursing home/medical debts. I want to hear feedback from you guys especially from those that may have had to do this. (I know things can be different from state to state but still any advice?) Mom is pretty much indigent and incompetent now and a Medicaid application is “pending” with the state conservator. When I read the documents though to place mom in nursing home, the language can place questions as to my liability. My guardianship papers however clearly say I will not be responsible.

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If you sign a paper that the nursing home provides that states that you are willing to be responsible for any of your Mom's nursing home expenses, you might be liable.  Make sure that you read each form carefully before you sign it to make sure that you are NOT accepting responsibility to pay for your Mom's nursing home expenses. 

As a guardian, you are generally NOT personally responsible to pay for your Mom's expenses out of your own pocket.  You definitely need to have a separate checking account just for your Mom's money and NEVER, EVER intermingle your Mom's money and your money in the SAME checking or saving account.
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Looking4hope Aug 17, 2018
Deanna. My concern is that the guardianship paper language does protect me but of course the nursing homes put language in their admission papers that state payment will be made (does not matter who). Again this is what confuses. The attorney says to let her read any papers I sign but if I’m a guardian. I HAVE to keep mom in a nursing facility and all their language will protect THEM. So it seems I’m in a pickle either way. Am I misreading into this ??? Any advice ?
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I have not been required to pay out of pocket for anything, although I do on occasion and I keep all receipts and at the end of the year when I file the annual reports I will even things out.
Our retirement checks do go into separate accounts and the court has put some restrictions on how much I can remove. I am limited on how to handle her savings. I can put funds into it but withdrawals are another issue.
I must add that my wife is still living at home so medicaid is not yet involved.
The judge here did question me about being paid for caring for her. My answer was that I have cared for her for fifty years and would continue to do so as long as I possibly could.
Please note that I live in Nevada and thing may vary in your area but do talk with an eldercare attorney.
And yes the annual paper work is horrendous. But I did it with no errors. It only took three days for me and lots of coffee.
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Myownlife Aug 19, 2018
Oldsailor, I don't understand. How can a court/judge tell you what you can/cannot do with your wife's money when you are married and she is at home? Or, are you talking about having applied for Medicaid and that is why you have restrictions on how to spend? I don't mean to be nosy, just trying to get an entire education on this site. It is so helpful!
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I you have any questions about the documents, please run it by the attorney. You do not have to pay the attorney yourself either. I know the document I signed said I was responsible for payment being made. The attorney said it did not make me liable for paying but for seeing that she paid. Payment should come out of your mom's funds.
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Reply to Toadhall
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Here is some information from a legal site:

In most states, for a child to be held accountable for a parent’s bill, all of these things would have to be true:

https://www.nolo.com/legal-encyclopedia/your-obligation-pay-parents-nursing-home-bill.html

In most states, for a child to be held accountable for a parent’s bill, all of these things would have to be true:

The parent received care in a state that has a filial responsibility law.
The parent did not qualify for Medicaid when receiving care.
The parent does not have the money to pay the bill.
The child has the money to pay the bill.
The caregiver chooses to sue the child.


more....

Although, in practice, these laws rarely cause children have to pay for their parents’ bills, a 2012 Pennsylvania appeals court ruled that an adult son of a nursing home resident would have to pay his mother’s $93,000 nursing home bill based on the Pennsylvania filial responsibility law.

his is a rare case because 1) the mother made just enough money through a pension not to qualify for Medicaid, and 2) the court allowed a private institution to sue the son, whereas filial responsibility laws are generally designed to empower the state to recover payments to reduce the burden on welfare.

While this is an unusual case, some practitioners wonder if rising care costs will cause more cases like this to surface.

Looking4hope:

If you live in a state with filial responsibility laws, and your attorney has not apprised you of the rare situation in PA, please get a second opinion.
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disgustedtoo Aug 19, 2018
Ah, I did not see your post before I posted the same info... oops... However, even though I still suggested OP get some legal advice and have signed papers that negates those "responsibility" clauses, the rules for these "filial" laws would not likely apply because her mom is on or will be on Medicaid. The PA case was NOT Medicaid.
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Someone on the forum will be able to answer ur question. As guardian you will not be required to pay out of pocket. Your responsibility will be to handle the finances and medical. But once Mom is on Medicaid, her SS and any pension will need to go to her care. Is there a house? Unless you want to pay for the upkeep it should be sold at market value. Once sold, Medicaid stops till you spend down the proceeds. Then u refile for Medicaid. If there is a house, bring this up to your lawyer.
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Reply to JoAnn29
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When you sign papers with your signiture add (guardian for....) Ask your attorney if this will be acceptable
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Health 2018..
I was in a tough spot, I went in to a lawyers office hoping to get a Will and Trusts done but after talking to my husband for a few minutes this ONE lawyer said that he did not think my husband was able to make decisions. So I sort of "fell into" the Guardianship.
I guess I felt that it was ridiculous to have to save receipts if I bought him a pair of pants or shoes. When we moved to a house that was built Handicap accessible I could not use the money from the sale of the house (his house prior to our marriage and I was not on the deed) but I could "charge him rent" as well as "charge" him for cable, phone, gas, electric, newspaper, food, and other household expenses. Funny thing is I had paid the property taxes on his house, all the other bills including gas, electric, garbage but yet it was not considered also "my" house. I guess it just did not seem "fair" at the time. It is not like I was out to "steal" money from him. I can understand a Guardianship in some circumstances and I guess they can not distinguish between.
All in all I thought that the only people that come out a head are the lawyers, judges and the county court.
So after all this I guess it did have to be done. Probably would not have had to be done if he had put my name on the deed to property. Then all I would have needed would have been POA for Health and Finances.
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Looking4hope Aug 22, 2018
Grandma. You are so right it’s a complicated expensive mess. Instead of enjoying quality time with our loved ones this is what can happen. I’m sorry your are going through this and I’m seriously still not sure what we can do but jump through hoops. Btw I found a copy of her poa and will before the dementia behind her dresser drawer at her home but guess what ?—the state has
custody so it’s useless now she tried to prepare but got scared and paranoid from the brain disease ( that it what it is !) Dementia is dangerous in that it can sneak up on your loved one and create paranoia or many disorganized issues/thoughts in their minds and even the best daughter in the world could not convince them otherwise By the time you can get a diagnosis you may have no choice but a forced guardianship or just state ward. I think it’s so sad that the doctor my mom had did dementia and actually did place a diagnosis on her but Left me as the only child with this unfixabke mess. I had asked him to please not Let this happeb but no one listens .I’m very upset with the system and how this turned out but what can you do ??? Prayers to you and your family. It’s a hard journey
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I was Guardian for my Husband. (Not my choice and in 20/20 hindsight probably did not have to be done)
There are NO personal financial risks, unless you want to assume them
The lawyer fee comes out of the funds of the client, (your Mom).
You will have to be bonded and you will still have to pay the court appointed Guardian ad litem. (at least I did in the state where I reside..Illinois)
You will have to go to court to be appointed, and all relatives will have to be notified of the petition as well as the court dates.
There is time that you will invest, court time, time preparing documentation as to bills you are paying. If money comes out of your account (you buy a pair of shoes or take her to lunch) you save all receipts and you can pay yourself back but the court must approve the expense. This is done several times a year. You can go to court or have the lawyer go.
It can get complicated. There should be information on line for your particular state, I do not think your particular county would have different regulations than the state would but to be sure check the county website.
good luck. Keep in mind that it is a safer way to do things for her protection both financially and personally.
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health2018 Aug 21, 2018
Grandma1954: What could you have done differently than guardianship for you husband. You mentioned it probably didn't need to be done. I have POA and medical POA. Elder law atty. has made point that my husband could revoke them if he wants to, so safest option is to have guardianship. He has dementia and can not make rational decisions for himself. I will eventually run out of money paying for in-home care or nursing facility. Sometimes I feel like I will lose my mind and physical health through this. Then there will be 2 lost lives. I look forward to your, hopefully inciteful response. Thanks for posting.
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A problem with the advice to ‘ask an attorney’ is that the attorney’s opinion won’t necessarily stand up in court. You are presented by the home with a standard form contract. You can cross out words and put in others (preferably suggested by your attorney) that clearly avoid personal liability for you. You initial them and keep a copy of the amended document. If the establishment won’t accept it, then you know that you are in trouble. If they accept it on the basis that ‘that’s what we always expected’, then neither you nor they have a problem. If they say ‘that’s our normal practice’ but refuse to accept an amended document, your line is that they need to consult their own attorney to make sure that the standard form reflects their normal practice.
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Reply to MargaretMcKen
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No you won't be held liable for any of her financial obligations....her estate is held accountable which YOU will have to handle.
I just became our Mom's guardian/conservator in July. Mom really did well thinking about what her future would be, very well.

Here is the caveat that the attorney may not be telling you.

1. You will need to petition the Court
2. There will be a background check as well as having an interview with a Court investigator
3. If you have siblings, they will ALL have to be "notified" as interested parties regarding your intentions and they will have the right to contest or sign off their rights to attend and accept, BUT they NEVER lose their right to contest IF they think you're abusing your position and her finances
4. Talk with a paralegal (just like RNs, they know more than the attorney), it can save you thousands of dollars.
I have the best ever paralegal who helped me and she still does transversing me thru "other" legal systems no one would ever know exist
5. You can represent yourself too. I had been researching laws etc for more than 3 yrs because I knew my siblings would walk out on Mom once Mom's Alzheimer's got so bad they didn't want to care for her....just waiting for the $$$.
BE PREPARED IF YOU CHOOSE TO GO THIS WAY.
The paralegal who helped me said that she knew that by the end of the hearing, I'd be telling the judge/attorneys they were wrong and why....I did, FUN!
6. IF you have step-siblings, they are NOT CONSIDERED "interested" parties and therefore are not notified. ONLY your Father or Stepfather must be notified since he is married to your Mother
7. Here's where the fun begins, you're appointed and now you have a mound of paperwork to climb. Schedules that must be met.
a) financial report to see if her estate is sustainable to care for her for the years she may have left
b) any unrestricted money must be placed in a POA, Guardian or Conservator account....get that done now ONCE you have Durable Power of attorney
c) keep fastidious records of ALL the money you spend from HER account as stated in B, Excel is great
d) keep records/receipts of out of pocket you spend
*research you States' process to do this. There are modules you must do, certified and presented to the Court*
e) where will you place your Mom & the cost, this will be part of the financial report
I have spent 99.9% of my time keeping up on everything I must do for Mom and her best interest. I have a shelf of 3 ring binders of bank, investment statements, emails/letters from my butthead step-sister/her attorney so stupid, both of them. Conversations with my siblings notated etc
Ask yourself if you can truly do this, but remember that if you don't then you'll be paying a "professional" appointed by the Court as well as a Fiduciary attorney.
After my appointment, I had to hire an attorney to go after my step-sister who "stole" $40.000 from Mom BEFORE I finally told my siblings they needed to agree that I become Guardianship/conservator (my banking background was the defining factor).
Be prepared for the State to step in should your Mom not have the financial ability to pay her debts.
KNOW the difference between Community property law and Commom property laws,9 States are still Community property, thank goodness AZ still is so Mom's sole/property, includes her money is not considered to be part of my step-father's. This pisses off the step-siblings big time. Daddy came into the marriage with nothing.
I have 1 required issue left to do and that is having ALL of Mom's assets appraised, meaning her real property as well as separating her/his/theirs
Someone in the family needs to take charge, but remember family can steal just as well as any other thief
Forgot, IF the State "helps" they are #1 in the line to get their money before those who are still owed by the estate. The only money no one can touch outside of the estate is anyone who is beneficiary to life insurance or stated as such on bank account
GOOD LUCK and prayers
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