What legal rights do my brother and I have as joint owners of my Dad's building and his accounts? - AgingCare.com

What legal rights do my brother and I have as joint owners of my Dad's building and his accounts?

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My brother and I are joint owners with my father on his two story building, combined residential and business. My father is currently in a nursing facility and will need some type of long term care the rest of his life. He is 89 years old. twently years ago, he put his building and all his bank accounts in joint ownership so that we would have access to his affairs. I also have POA over his medical and financial affairs. My father's reasons for making us joint owners was so that we would have easy access his savings & building when he dies and that it would not be used up for long term care and have nothing left to benefit his children and grandchildren. Is his estate, our parts of it, in fact, protected, by us being joint owners?

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As for the bank accounts, merely adding a joint owner does not change the characterization of the entire account as belonging 100% to your father, UNLESS the account requires the signatures of both/all joint owners. If it is an "or" account--where any named owner can write a check or withdraw money--then all the money belongs to the senior on the account, except to the extent the other owners can prove they put their OWN money into the account.

As for the real estate, different rules apply. Generally, your father's percent ownership will be an equal share of the value of the property, i.e., if he is one of three owners, he will be deemed to own one-third, etc.

In all states, the Medicaid applicant's ownership interest in his or her personal residence will be exempt for purposes of qualifying for Medicaid. But in most states the business interest will NOT be exempt; some states, however, will exempt income-producing property. So it starts to get complicated!
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Making you joint does NOT mean there is ANY kind of protection. He planned to die and leave things to you. He did not plan for long-term care, and his assets have to be used to pay for that. As long as you have private pay for his care and he stays off Medicaid, those assets are not taken.
Hopefully he has a pension and SS and maybe long term care insurance or life insurance with cash value that can cover it all.
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ls - I understand your point and I'm not advocating hiding assets. But Raymond probably is going to need help in the maze that is Medicaid.

Really the state's have the ability to do a very good vetting on the Medicaid applicants assets & income. The info is there and just a few keystrokes away from their real property assets being known. Raymond's dad is likely right now under Medicare but those Medicare paid days are about to expire and they are going to face a total panic on how to pay for dad's care. They need good legal to work with them in figuring out the whole clusterF of dad's assets & income.

Based on what Raymond has written, there is no way - with his dad's owning a commercial property, still having a biz, getting rental income - that dad is going to be eligible for Medicaid. Dad is not impoverished & he has non-exempt assets. I wouldn't be surprised if when Raymond starts ferreting out stuff that they find a whole life insurance policy or other things that have a cash value; and they find that dad has not kept up with his debts too. Imho they need a good legal to get all this evaluated and cleaned up not so much to get things done for asset-avoidance but to figure out what needs to be done to sell the assets to pay for dad's care. At this point, asset planning for Medicaid ain't an option.

But I bet that Raymond & his brother just don't have the $ to private pay for dad from now till forever. It will take time to sell property, to do a P & L on the business and figure out what dad's real income actually is. I wouldn't be surprised (based on what I've seen with others who have strong personality dad's who are elderly) that actually dad's biz has been on fumes for quite a while and there really isn't $ but just convoluted debt. A hot mess. What the attorney may possibly do is form a trust for dad - so that all of dad's assets & income is owned by the trust and when things sell (like the sale of property or from cashing in an insurance policy) the $ goes into the trust. Now the beneficiary of the trust will be the State. Neither Raymond or his brother will get any of the assets in the trust ever, but now perhaps dad will qualify for Medicaid. It would sort of like what a Miller Trust does for those who have just too much income to get Medicaid but not enough to private pay for Medicaid. But Miller requires the income to be guaranteed qualified income & I bet Ray's dad doesn't have this. The rental from the insurance company isn't that (qualified income would be like SS or other fixed guaranteed retirement like a federal annuity). They will need legal to do whatever is needed is done correctly.

The problem is that they(dad & his kids) did estate planning based on 10 - 20 years ago. I bet when all this was done dad was in his 60's (and dad was a big healthy personality) and everybody just assumed that even if dad needed care that it would easily be affordable. But the reality is that if one lives long enough that you will eventually run out of $$ as the cost of LTC is just staggering. Only if you are generationally wealthy can you afford wonderful private pay care and people like that aren't on this site! (LOL)
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Better get yourselves a good real estate attorney.
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It is going to be totally sticky for Medicaid because of the business aspect. Property that is business with the Medicaid applicant being the owner usually in an non-exempt asset for Medicaid. If it's a family farm or working ranch (even if it's many,many sections) then those can be exempt. But a bricks & mortar type of biz or commercial property situation means non-exempt asset. Really BEFORE either your or your brother do the application please meet with a good estate attorney. They in turn will likely do a consult with a real estate attorney and elder law one - if the practice is large enough they already have specialists for these areas within the practice.

There are some things you can do now like start looking for & getting all the financial documentation for dad on a personal level and then everything on the business for the past 6 years. I'd go 1 year more than the 5 year look back. You know timing is good (Febuary) as the attorney may want to have you all do a major tax filing on dad and his biz for 2013 taxes so that dad can show impoverishment and do major loss for 2013 P & L on the biz. No time to waste as IRS biz filing are due mid March, 2014.

Just out of curiosity, is the biz successful and making a profit or is it the more the type of biz where it was successful decades ago but dad kept on with it and its profitability declined as he aged….but dad was stubborn and wanted to keep things going type of situation?
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It is not a business as such, it is that my dad rent's out the first floor to an insurance company office and he lives on the second floor.
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How do I respond to someone who has responded to my question?
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You just did :-)
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You can't hide the assets and then put him in a NH on Medicaid. They are very good at tracking the money and the building ownership. They will then simply not pay for his care. You will.
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Thank you all for your answers. Dad is by no means weathly, he has only a meager income from SS and a very low income from rent of a small office space. He is alert and excellent in mind and his affairs are all in order. Only his body is deteriorating, although he is rather healthy. Movement is biggest problem. Besides his home he has some savings but had intended to leave that to me and my brother and my children. We are looking into getting a lawyer and looking into having Dad do one time gifts to me, my brother and my children as a way for him to leave us something. We all do know that we will have to use some of his money for his care as well until it runs out. You are right only the rich get to live in these nice assisted living and nursing facilities and the middle class are left with using home health care and family members caring for the elderly. It is fortunate that the poor do have the medicaid. And depending on how long Dad lives (and I am hoping it will still be a while) he may eventually qualify for medicaid.
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