Can I set up some sort of trust that would enable my brother to get into an assisted living situation? - AgingCare.com

Can I set up some sort of trust that would enable my brother to get into an assisted living situation?

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I have savings bonds in my name that were given to me by my deceased parents to care for my developmentally challenged brother. My brother is 87, on Medicaid, and welfare, with no assets, small social security monthly check, which covers his rent, and I cover other expenses for him. Right now he's on lists for 4-5 years because he needs subsidies to help pay.

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You could transfer some of the assets your parents left you into a Special Needs/Supplemental Needs Trust for the benefit of your brother. Such a trust could help secure your brother's entry into an assisted living facility without disqualifying him from Medicaid. That's because the trust would not be REQUIRED to pay anything to or for his benefit (assuming it is drafted correctly). As for being over age 65, that would not be an issue here; that rule only applies if a person is setting up a trust for their own benefit.
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I am not sure I understand your question. If you are concerned about current eligibility for public benefits there is no issue. The way you describe the situation, money was left to you and never passed through your brother's possession and he, therefore, has never had any incidence of ownership. That being the case, and since you state he has no other assets, there should be no issue with him qualifying for public benefits.

If the issue is "What happens if you predecease him?", then establishing a trust on a current basis, but certainly a testamentary trust (one that is created at your demise), makes sense as you do not want him to inherit anything that would disqualify him for public benefits.

Your estate plan can be structured so that your Will (or revocable living trust), creates an irrevocable trust or irrevocable special needs trust for your brother's benefit at your demise (this is the aforementioned "testamentary provision"). In either event a trustee will handle the funds.

The decision to establish a trust now and transfer funds, or for it to happen on a testamentary basis may be based, in part on tax issues. Savings bonds held for long periods of time may have large taxable gains. Be mindful of the tax effects of liquidations/gifts/inheritance/trusts.

The goal, of course, will be to preserve public benefit eligibility and to have a third party managing his financial affairs.

The above is information available to the general public, is provided for informational and educational purposes only, and should not be considered financial or legal advice.
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Speak to an elder care attorney about a special needs trust. And, is your statement correct, your brother is 87?
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Although a special needs trust won't work here (it requires your brother to be under age 65), you may be able to set up a discretionary trust for his benefit. I agree you should consult an elder law attorney, since the rules can vary state-to-state.
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It sounds like the issue is that the OPs brother has to wait because he "doesn't have the money," and will need to wait for a subsidy. The truth is he "has" the money in his siblings name. Taking possession of these funds would jeopardize his medicaid and welfare. OP, is it possible for you to pay the ALF durectly with his money? You can also set up a trust for him with yourself as trustee. This does not need to be a "special needs trust." An attorney would need to do this for you and you would pay the attorney fee out if your brother's funds.
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OP says brother is already on M.A. and welfare.....so somewhere there is already a county case worker, who must already be aware of the complete financial picture. If brother need increased level of care, just have th doctor write a statment of that need, and let the social worker take care of finding him a bed. Any bonds that were not discovered or declared during application for M.A. -- that is only going to cause disqualification since assets exist, so if you declare them, at this point they will all get used up (cant have over $2, 000 assets). Go ahead and have a Trust set up but all th assets will be used for brother. Why in the world weren't those assets already set up as a Trust already?
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My sister lives in a group home and everything is covered including transportation, day program and she has a generous PNA allowance. Talk to the caseworker.
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You can also contact your local area agency on aging, they would have information that could assist you in your quest to find placement for your brother. There are programs available, speaking with an elder law attorney is also a great idea.
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