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My mother, age 81, is a resident of Delay Beach Florida. Palm Beach County. She currently resides in an Assistive Living Facility in the Memory Care Unit. I live in New York and I am trying to sift through all this information in an effort to assist my family going forward. My mother owns her own home, no mortgage and added my younger brother to her deed a little over one year ago. He has an enhanced power of attorney and has a care giver agreement with her. He is partial/fully disabled (per NY State). He currently resides in her home in Florida and up until now has been managing her needs/money/etc. Until the present time, her expenses at the Assistive Living Facility have been paid through private funds which have now run out. We are processing/ will be processing an application for Medicaid in Florida. My question : While my mother is alive, is my brother allowed to keep 100% of the proceeds from the sale of my mother’s home for his own use or will ½ be his and the other ½ my mothers. I expect that Medicaid (5 year look back) would expect reimbursement for the $ laid out at the time of annual re-evaluation/reassessment of needs?

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My brother's record keeping basically is/was non-existing despite my advise/warnings to the contrary. He said he could produce bills he paid with her money but I know there were other things that he used the money for that I believe was wrongful. The elder lawyer who created the caregiver agreement, according to my brother, said he could use the $ to sustain himself too. I told him, and I know none of you are therapists, that the money was mom's first and should have been used solely for her needs. He should have worked part time (partially disabled) to supplement his needs. Of course if the home needed repairing he could/would be able to use the money accordingly. It is hard because I do not want to fight with him. He is single, never married, no kids, not working and my older brother and I are just the opposite. He has dug himself a hole and I just want to make sure I can protect my mom in the end. I think what I need to do now is let her get on Medicaid. I know he will need to sell the house. He will then find out that MCD will want the paid out $ back. Let MCD tell him and not me. IT will spare a family war which we have been trying to avoid.
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Check with an elder attorney but in general, mom should be able to receive Medicaid and the house can remain until her death. The house will have a lien on it upon sale from which proceeds will become part of the claw back. Brother may be in good shape for a while. First he has a caregiver agreement which should be reviewed. From the point of the Medicaid application, he will not be able to receive any more funding from her. If he wishes to live in the home until she passes, he will have to pay for all taxes and upkeep.  Is this feasible?
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Deb
IMHO he is entitled to none of the money if the house is sold as far as Medicaid is concerned. For a clear title to be passed he will of course need to be part of the transaction.
What I was trying to say in my earlier post is that he needs a certified elder attorney to advise him for mom’s sake and his own sake as to the best way to protect him and her. The law allows certain allowances for the caretaker if things are done correctly.
You say he is disabled yet he is POA and has been caring for her. He may have the right to keep the home and place mom on Medicaid when her current funds run out.
Have you spoken to a Florida ( certified) elder attorney? As second POA are you sure you can assign yourself? Depending on how the POA is written, brother may have to resign as POA before you could act as your mom’s POA. I’m sure you are looking to the best interest of both your loved ones.
If the house is sold, the money must (Medicaid rules) be used for mom’s care is my opinion.
If brother has spent mom’s money on himself in a way that is not covered by the care contract, then when Medicaid does the five year look back, she may not qualify.
Get a Florida certified elder attorney well versed in Florida Medicaid rules to help with this process.
Respectfully it doesn’t matter what you and family members or members of this forum think. What matters is what has actually happened. How it was documented and that the paperwork is done correctly. That way your mother is assured of care. I’m sure your mom did the best she could and perhaps brother did as well. It’s a complex system. With the welfare of two vulnerable family members at stake my best advice is get a Florida certified elder attorney on board to guide you and the family through the maze.
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97yroldmom
Thank you for your response!! Any words of advise, pearls of wisdom are greatly appreciated.
My brother had a lawyer draw up a caregiver agreement just prior to mom entering into the Memory Care unit June 2017. The monies in her accounts were used for her expenses and that of my brothers while living in her home. My brother, parital full disability (per NY) has done well by my mom, her facility is lovely and the care is superb. That being said, he has not spent her money wisely in our opinion. My husband, my older brother and his wife. We want for nothing and always understood he would inherit her assets. Now, he has used up the money, she needs to apply for MCD and I know he will need to sell her home. I need to know if he is entitled to all the proceeds from the sale since he is on the deed too. If not, I will as 2nd power of attorney, place her money in an acct for her and over see things going forward.

thank you all for your input!!

Deb
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In some states there is a provision that should a family member be taking care of mom for a specific length of time before the parent goes on Medicaid, then that caretaker can stay in the home. Of course, none of mom’s income could be used to maintain or pay taxes on the property. Now you are asking about selling the home. The home is exempt from qualifying for Medicaid. What your brother should do is seek counsel from a certified elder attorney to find out exactly how he will be affected by any such sale of the home if that is the decision. If it’s sold then whatever portion is mothers would need to be spent on her care before she files for Medicaid. Since his name has only been on the deed for one year that will be a problem. There is a five year look back on gifting. So an attorney is needed here. I suspect sll proceeds would need to be spent on mom’s care if not handled to protect brothers interest.
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Yes, Medicaid will see the transfer a year ago as a gift and deny the application.
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I'm not an authority on Medicaid, but I think that conveyance of a portion of equity through a deed would be considered a gift. And, realistically, it isn't equitable for him to keep the full amount of the proceeds while taxpayers' funds are used for your mother's care. That's not a criticism, or meant to be nasty - it's just an observation.

You're wise to address this now before anything further is done.
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