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

Raymond - none of this is simple or easy. Keep in mind that any gifting that Dad does to you or your family will face a penalty if Dad needs to go onto Medicaid in the next 5 years. The whole gifting is totally OK by the IRS and taxes if within whatever the $ limit is annually (? 13K ?). But OK for IRS is not OK for Medicaid. If he gifts all of you the IRS max today then the 5 year lookback would be March, 2019 before any transfer penalty incurred by Medicaid.
That my dear is a huge spread of time…….

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.

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)

I sincerely wish your dad the very best and I wish you well in dealing with these issues as the emotional part is hurtful regardless of assets.

I do need to point out one thing. Medicaid is for poor people without means, society (we the taxpayers) share the bill for people who cannot do for themselves. I have no issue with helping those in need. I do have an issue with a person of means, divesting their assets so they can get in the poor line and have society pick up the bill, whilst their loved ones count their cash. That is precisely the reason Medicaid started the look back period. Yes, there are some loopholes, but these are not legal "rights". Many people ask similar questions, and frankly I cringe when I see advice that seems to favor gaming the process.

Protecting the assets basically means the taxpayer is subsidizing your inheritance. Abuses like that make people think necessary entitlements such a Medicaid should be cut.....and that would only further hurt the truly needy,

I do sincerely wish you and your family the very best in health and health care, but I sincerely hope you are denied for Medicaid, as it should be available for the truly needy.

Nothing personal, but I needed to say this.

I would really go to an Elder Care Attorney you need some really good answers. The wrong move could cost you, where the right move could save you!

Raymond - the caregiving decision isn't a clear cut this way or that way, just so much of this depends on just what the level of care that dad needs and everybody's ability to do whatever is needed and for the many months (or years till he dies). And how realistic all this is at home and with the clear understanding of who to do what and who to pay for stuff. IT will be stressful on you & your brothers marriage and own personal life.

BUT until you can work out the whole dad's convoluted asset situation, someone is going to have to private pay for dad @ the NH. He is just not going to pass the vetting for the Medicaid application with having an operating business and asset producing property ownership. Even if it as best only 1/3 of the profits, it still will be an asset that needs to be spent down, or sold at fair market value to you & your brother & then those funds spent-down.

Personally my suggestion is that you face 2 options: you & bro come up with roughly 20K each to private pay for dad @ the NH for a 3 or 4 months & pay for the legal & CPA stuff needed; and within this period of time get legal to sort out his assets and get it all cleaned up so that a Medicaid application can be filed with everything all done, sold, whatever & before the application. If you apply now, you will be in transfer penalty paperwork hell and someone on the hook to the NH to private pay for his stay anyways. Also I would suggest that someone be the main point person on all things dad - if you & your brother are at odds on approach, then perhaps someone else within the family, maybe a younger cousin can co-oordinate all this and then have a family meeting regularly for updates & decisions.
None of this is easy or simple and it can be overwhelming. Take care!

Which would be better and/or less costly, living in a nursing home or having a living care person in his home?

If my father has to be in a nursing home for long term care, maybe the rest of his life, since my brother and I are joint owners with him on the building that he owns, can we sell the building and split the profit 3 ways, that we get our share and my dad's share goes toward his care?

If you want to say something to a person in private you can send them a hug. Look under their photo and click on it then you can write a message to them.

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.

You just did :-)

How do I respond to someone who has responded to my question?

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.

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.

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?

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!

Better get yourselves a good real estate attorney.