Child caregiver right to patient's home in light of trust & will?

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If an adult child qualifies as a caregiver whose care kept the parent out of a nursing home (for more than 2 years), how much right will the child have to the parent's home long-term? The home is in an irrevocable trust. The parent's Will gives the house to the 4 children. The parent may need to go into residential care sometime soon. Although there is some income, Medicaid will be required to help. If the caregiver successfully petitions to keep the house, will the house get deeded to him permanently? Or can he just keep the house (and pay expenses for occupying it) until the Will comes into play?

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Ok I understand, your the proactive sibling, that’s good. Imho most of the thought process on doing an irrevocable trust is to avoid probate. So that all assets get titled into the trust and hopefully some of those assets have an income stream to pay property costs and everything continues seamlessly even if mom dies.

Trust done assuming that there’s $ and no anticipation of ever needing Medicaid. But once Medicaid is looming, trust may not have advantages.
You all have been lucky that 1 sibling has been a caregiver to hold off on needing to go into a facility & thru the maze that is Medicaid. But at some point elders care needs get beyond being at home and caregiver runs out of ability.

I’m assuming that’s what’s happening..... really try to find out clearly what your mom’s state Medicaid does for irrevocable trust for initial Medicaid eligibility and then for after death Recovery; and try to get your hands on the last 2 years of all property costs to clearly know what future costs will likely be and if everybody truly is up for paying for 3 years. If the decision is made to keep home, ask atty how to handle $ coming in for this so that it does NOT become income / assets for your mom ever.

Also look to see if the caregiver sibling and mom have been commingling funds to pay household costs. This seems to be common. It will be a mess for the Medicaid application so you want them to stop this now and start ferreting out receipts just in case Medicaid does a transfer inquiry on mom’s application. If it’s looking like this is likely, I’d suggest you go ahead and order bank statements from past years if you cannot find them now and get mom to have you added onto all non-trust accounts as POD.

Please try to be fair and understanding with caregiver sibling.
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anonymous826186 Jul 19, 2018
Thank you. That was very helpful.
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Thanks for your feedback. I am not the caregiver, but one of the other children. I am consulting with the lawyer who wrote up the trust, and another lawyer for separate, but related, potential issues. Unfortunately, they disagree on some salient points. I'll keep digging.
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To me you have 2 different issues..... the caregiver exemption to estate recovery AND what property in irrevocable trust means for heirs and Medicaids Estate Recovery.

I’d suggest you contact an elder law attorney first to definitely find out if for your states medicaid program IF irrevocable trusts - & if it must be done over 5 years ago - place the home beyond Medicaid Estate Recovery/ MERP. If so, then caregiver exemption doesn’t matter as House is outside of estate recovery action.

And if so, then how are property costs going to be paid once mom moves out of her home & into a facility? She will have to basically all her income paid to the NH if she applies for Medicaid. So that irrevocable to all the 3 kids home will have to have its costs (taxes, insurance, etc) paid by someone. Your 3 siblings may or may not be enthusiastic about paying a penny for you to live in the house. But they may expect to totally get their % share of ownership as per irrevocable trust house $ once House sells after mom’s death. Or they expect you to buy out their 75% shares after she dies. Or they may just sign over their 75% to you as a thank you for taking care of mom. You know your family best. But I will say that posts on this site show that is rare.... they are going to want the $$$.

If your state can do a recovery from irrevocable trusts, then you can try to get the caregiver exemption for your 25% share of the property. The issue will be the other 75% will be subject to Estate Recovery unless they have their own exemptions to recovery to file and provide documentation for after mom dies. There’s all sorts of exemptions beyond the caregiver one. 

For a parents to want to continue to own their home and be in a facility on Medicaid can be done. Medicaid by & large allows for their homestead to be an exempt asset for their lifetime. But family will have to pay all property costs from day 1 of medicaid till beyond death and you deal with trust / probate filings and whatever needed to get past Estate Recovery. Getting costs paid equitably & finding agreement on this is a tall order for 4 siblings......
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i don't think the care giver has any extra rights to the property if the WILL says the property will be split amongst 4 siblings. Unless your siblings don't care.
Even then, the house could have a lien placed on it by medi-caid to re coup costs in a facility...in the future.
if the house is under a trust, i would contact the attorney and ask him the questions you have.
if you feel you are owed something for the two years of caregiving, you should have set up an agreement for pay. again you may contact the attorney for that too i think.

someone may answer better than i, so keep checking back in the days coming....



btw liking that screen name
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