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I just moved my mother into my house, her caregiver husband died. Mom has dementia. I am her Power of Attorney (POA) and caregiver now. I was told by an Elder law attorney to spend down her money to get her into a nursing home and on Medicaid. I am reluctant to do that. Mom doesn't have that much money, I'm afraid if I spend it then I can't find a nursing home that takes Medicaid or has a Medicaid bed available. The lawyer said she would rewrite the POA so mom would qualify for Medicaid and I could pay myself for caregiving. Could I write a caregiver agreement and let mom pay me for care, room and board, without going through an Elder Law Attorney? The attorney wants to charge $750 for the POA. I have found caregiver agreements online from AARP, and Alzheimers Organizations. If I spend her money on respite care, pay myself a modest amount would that count against her getting Medicaid when she needs it?

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See that attorney. The fee is low and is mom's responsibility and is a part of spend down. Not for you to pay, personally.

If mom has a hospitalization and you find you are no longer able to provide the care she needs, placement can happen quicker, but not necessarily to the facility of your choosing.

Having a diagnosis of dementia does not eliminate the ability to sign new POA documents. She only has to understand "in the moment". The attorney will determine that. Doctors are often hesitant to sign statements of incompetentcy.
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I am my 95 yo Mom's POA/DPOA and she pays a modest amount toward R&B,( but not care) and it's part of her spend down. Once she pays you for care then a whole boat load of IRS stuff happens. Don't rely on internet contracts as State Laws can have different wording and may not be legal.

Each state is different so you may need an Elder Care Atty. Good Luckm
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I would be concerned that an attorney would say they could create a new POA so you can get paid and it will pass Medicaid scrutiny. Your mom would need to understand what she is signing for it to be legal. This could catch you out in many different areas.

I would read your current POA very carefully, it probably states that you can not be paid for doing POA requirements or activities. That doesn't mean that you are on the hook for day to day caregiving, that is not part of a POAs responsibility.

You would be better off interviewing several attorneys, most will give you a free consultation, if not don't interview them. Get other opinions on your best route to take.

You can charge your mom for her living expenses, but it needs to be fair. You can actually find a place for her and self pay until she meets Medicaid eligibility. That would be the most ethical thing to do. But I would not have her sign any legal documents, that could end up very poorly for you, it smacks of fraud and the attorney is recommending it, waiving red flags.
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Given that your mom is not cognitively able to sign an agreement there is an extra step that your legal adviser did not include.

Have her physician write a statement of disability. It does not have to be lengthy or involved. It can simply state:

____________ (name) is unable to care for herself due to altered mental state in the form of dementia. She requires 24 hour care and supervision.

_________________ (signed by physician) __________________ (date)

Add the physician's address, phone number, and license #.

Make multiple copies.

Once this has been done, you can initiate a contract where you receive a stipend for caring for your mom. To be safe, have it notarized and keep in a safe place.

Medicaid will accept the board and care agreement and it will not affect her eligibility for Medicaid.

Hope this helps,
Donna
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Caregiver contracts must be structured in very specific ways to be approved by Medicaid. If you wanted a lump sum caregiver contract, Medicaid would only accept it if it's an annuity or trust fund that gets doled out to you bit by bit by an attorney.
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Sandalina,  many good NH have waiting lists.  Ask each one how long the wait is for self-pay.  If short, then wait.  You have time to enjoy her first. 

I used the local lawyer to do the POA with us, as Rose was still competent.  Our state had just put out a new form, so the form we did in the other state was not enough.  Then we asked about the Will and a care agreement.  He immediately said he does not do them, but he recommended an excellent Elder Lawyer who knew all the state laws.  First thing the new lawyer did was take Rose in a room alone to determine if she was competent to decide, and if we were treating her right.  Did she feel safe, was she happy.  Then they rewrote her will also without us. The only thing she discussed with Joe and I was the types of care agreements and their legal needs.  Excellent, worth every penny!  Covered all possible pitfalls.
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Use an elder law attorney.
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It won’t count against her, they look at her available assets. I am mom’s POA. The bank advised I get a debit card in my name as on her acct & I pay for whatever she wants that way plus allowance for us for utilities. They won’t touch anything not in her name so you can put monies in a savings for end of life expenses & that’s yours for her. Mom was just approved for LTC last week, they looked at what she had available. LTC takes all her SS minus $40/month which is hers. No bills can be paid, only her Medicare part B for meds. I did a new POA & Living Will online with Legal Zoom & it cost me ~$70 for both!! Just be sure to notarize!!
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The only clear thing about Medicaid is how confusing and convoluted it is; even the Medicaid office does not know what they are doing because it's the government thriving off of red tape to justify high-paid salaries.
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You got that right. Even lawyers don't understand it all. I've had "discussions" with our former lawyer about certain aspects. Then we take the Google challenge. Let's just say I wonder who should be paying who.
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If you mom has lost cognition the attorney will have to petition the Court to grant you POA. Don't go this alone or use online forms...the laws vary from state to state. Estate planning requires a lot of expertise and if you get paid from her estate for her care, you will have to pay taxes. See a tax specialist about getting a corporate tax account. You get more tax breaks.
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You’re smart to question the advice the attorney gave you. You and your mother might need the money she has saved just to get her into a decent nursing facility.

Can the lawyer even rewrite the POA when your mother has dementia?
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I agree with the wise folks who suggest that the attorney is the way to go. If you have power of attorney it is perfectly legitimate to pay for your Mom's attorney needs out of her own money. I also agree with the writer who suggests that placing your Mom in care now will accomplish getting the money spent down and will also give you access to Social Workers and others at the facility who can help with placement when there are no longer funds, and who can help you work through the paperwork. Your fee is not out of line. I paid 3,500 in California for paperwork that was POA and Trustee of Living Trust. The later was the most time consuming. California costs can "spend down money" fairly quickly. Wishing you good luck. Try to remember to take it one day at a time. There will be roadblocks and problems that can ramp up anxiety to an awful degree. But you will figure out how to get through them with good help.
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Our family lawyer charges on $250 for POAs of any kind. You can find a better price.
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Judysai422 Jun 2019
Our elder law attorney charges $375 per hour in AZ.
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In general no it wouldn't count against her getting Medicaid it will or should get her there faster. That said there is likely more than one way to handle this (lease for room and board vs caregiver contract or both for instance) and the right choice for you and mom is very dependent on the state and sometimes county you are in. However I don't know what it would have to do with your POA or why that would need to be re-written and based on her know Dementia I'm not sure re-writing that POA is even possible/legal, guess what I'm saying is before you fork over $750 to this attorney to re-write a POA you might shop around or have an initial consult with some other's that specialize in estate, elder care and Medicaid planning. It may be that a simple consult is all you need and they will tell you the forms you have found are fine or at least give you a sense of the pest path to take.

The other thing I want to echo here is that if your goal is simply to spend down her funds to prepare for Medicaid you might be better off simply placing her or getting her on the list for the residence of your choice (or top 2-3) while she would still be self pay and let that spend down her savings so she gets a bed in the place of her choice when she needs it (wait is usually less). Just make sure the chosen residence takes Medicaid residents as well so when it comes time she can stay there. This way the facility will often do the lions share of the paperwork and dealing with Medicaid too. You may find doing a mixture of rent and or care giving contract now while you look for and get her into a residence is the way to go too, much depends on how much there is in assets and her income but again this is different state to state. You are being very wise and a responsible POA planning this out as carefully as yo can and doing your research! Don't forget to stop and enjoy the love through this journey with mom.
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Sandalina Jun 2019
All good advice, but what if I don’t want to place my mom yet? Our situation is the same as the original question.
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I agree with the person who said stick with an attorney. My mom has lived with us for 16 years and after a hospital stay went to rehab and now nursing home. It has been such a grueling time but besides the grieving of this situation, has been the awful paper work and made to feel as if we re criminals. Mom has nothing besides social security. We never hid money, there was none, but this process is so bad. Even in my trust in the Lord, I have had many days of tears and angst. We are almost to the end of all this so I feel for you and all you are doing. Be diligent and wise. Just because you are honest, they don't care, you still have to prove everything.
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Omg Marcia! YES! I’m going through that right now. We’re trying to get Medicaid approval for my mom. We’ve had a combined household for 18 years. Who knew I couldn’t transfer funds between bank accounts?!!!! Right now I feel like I’m guilty of stealing all my mother’s money and all she has is 18k a year SS. She would NEVER have been able to survive on Long Island if it wasn’t for my financial help. I truly cannot take it.
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Blues53, kudos to you for taking care of your mother. Yes, you can can write your own caregiver agreement without using an attorney. Below is an article from AgingCare about this with precautions and at the end of it a link to a sample personal care agreement:  https://www.agingcare.com/Articles/personal-care-agreements-compensate-family-caregivers-181562.htm
Before you implement the Agreement you could have your state's Medicaid office look it over to ensure that it meets their requirements.
Best wishes
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cetude Jun 2019
Laws vary from state to state and I would never advise anybody to do something as complex as this using online forms. You can get in a lot of legal mess doing it yourself.
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You might want to look at the website:

https://careconversations.org/

I have found it informative and it has links to the state websites for Medicare and Medicaid as well as discussions about planning for the future of an elderly person.

I agree that you need to continue consulting with the Elder Law Attorney as they know the "little" details that pertain to the state that your Mom lives in and they can make your Mom's life and your life easier as your Mom becomes more and more dependent on others for care.
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Stick with the attorney who has knowledge on every little detail for your state. The cost is reasonable. You may end up saving much more in the long run. You will find that as she ages her dependance on you will get much worse.
My suggestion is if she has few assets (a year or less) to do some homework. Search for the best nursing homes in your area that take Medicaid and get on the wait list. Residents who have personal funds have priorities over a Medicaid list. Once she qualifies, she will already have a good home and can stay. If you wait too long then she will be placed in the first open bed. That could be a poorly run facility or one that is several miles further than home.
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I am so sorry for you, and I hope you can get things to work out. I am in absolute hell with my mom, her POAs, Medicaid, you simply cannot imagine how utterly complicated and insane the laws are. You can make one simple mistake and ruin everything. Do not, under any circumstances, make legal decisions based on the information you learn here in this forum. You need an actual attorney that is familiar with and trained for the laws in THE STATE you are in; POA documents and Medicaid rules are different state by state. If you have any intention of your mother being in a NH on Medicaid, any financial decisions she (or you have made for her) the 5 years prior to her application will be subject to Medicaid rules even retroactively. It may take years for you to find her a bed in a facility that takes Medicaid and has room. Please make sure you have a lawyer you can trust. In our case, a simple POA cost 200.00; Certified Elder Lawyer taking care of Medicaid, liquidation of all assets, etc., cost 3500.00. Good luck. Once Medicaid is involved, every single cent will be under their scrutiny, from the last 5 years.
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thepianist Jun 2019
"Do not, under any circumstances, make legal decisions based on the information you learn here in this forum."

I could not agree with you more. I shake my head at some of the advice I read here. There are organizations that will give senior citizens with limited means free legal advice. Yes, Medicaid looks at five years of financial resources and use. Medicaid is regulated by both federal and state law and you need an in-state attorney who knows medicaid rules.
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