So my sister currently has power of attorney over our mother who is in assisted living with dementia after a stroke. In order for her to qualify for Medicare two houses and all of her assets were transferred to my sister. She is using our mother's account social security etc to pay my mother's rent at an assisted living facility. The rest of the family is pitching in a bit every month as well.
In order to cover expenses me and my sister had a garage sale and sold some of our mothers belongings. We also had her home appraised by real estate and intend to sell the house. Furthermore some of our mother's stocks have been sold.
Now our brother is pissed apparently and has talked to a social worker and lawyer. He has also been in contact with our mother alot trying to get on her good side and telling her he is going to get her out of assisted living and take her home. As some of his past actions have caused him to fall out of favor with her.
He had told her that we sold all of her belongings and are stealing her houses, and she seems to be buying it. And he is trying to convince my grandma to revoke my sister's POA and assign it to him. She seems to be considering it.
He is accusing us of elderly abuse for selling some of her belongings without her consent, transfering assets, and claiming the conditions at assisted living are unacceptable.
My understanding is that it is difficult to revoke and reasign POA when one has dementia. But I am worried because that seems to be our mothers current wishes and our brother is not trustworthy.
Basically I just need to know if my sister and I have done anything wrong. And does our brother have a case regarding POA
So we met with a lawyer on friday, he went over our options and addressed some of the concerns brought up in this post, and said he would respresent us if need be,
-He said our brothers case against us is pretty weak, and he has nothing to gain. his chance of gaining control is zero and his chance of having power of attorney removed is slim. He is confident any lawyer our brother talked to will advise him not to pursue legal action.
-In terms of fraud and medicaid the lawyer said not to worry. Even if all financial records are subpoenaed, the case is shaky at best as they would have to prove intent. It could be fought easily. He advised us to stay the course and said that there is nothing wrong with her receiving medicaid in another 50 months. As long as the transfer happened over 5 years ago it will be irrelevant.
-He also gave us advice on how to protect ourselves legally. such as creatings a new account specifically for handling all of our mothers expenses. One of the stocks worth nearly 60k will be cashed and deposited in the account, rent from the tenant will be deposited here, social security etc.
So basically at this point we are waiting,staying the course, hoping our brother backs down. If he pursues legal action against us we have a lawyer. He is also willing to represent us in the case criminal charges, fraud, elderly abuse or anything else arise. Which is a slim possibility if our brothers intent is to turn us in and the allegations amount to anything.
https://www.familyassets.com/nursing-homes/resources/medicaid/oregon
In part, it says that asset transfers that might cause a penalty period can be reversed.
https://www.agingcare.com/articles/medicaid-lookback-and-penalty-period-166116.htm
Also, it is not illegal to transfer assets and apply for Medicaid. It is illegal to transfer them and not reveal the transfers on your Medicaid application.
You still better be spending any of your mom's money on your mom to avoid exploitation of elderly charges. But it sounded to me that you were doing that. Good luck.
It is a breach of fiduciary duty by the POA.
Both are felonies.
It really depends on where the money is going. The sister shouldn't even use the money for care and upkeep of the houses now that they are in her own name. It's a real mess.
I also think this was just a mistake and telling Louisxl that his sister should go to jail may keep them from approaching the right people who may be able to straighten this out.
Her actions have put their mom's future Medicaid eligibility in great danger. The other brother definitely has a case that she should not be acting as her mom's POA.
Many facility and Area Agency on Aging SWs are great sources of advice about Medicaid and they DO advise folks about the regs.
There were probably tax consequences for the sister's actions that they didn't consider too. Some stuff just isn't a DIY project.
I think telling them they are frauds who should go to jail for following the advice of a "professional" is unhelpful.
But I agree that the facility should know that the social worker is giving financial advice. I think the social worker is the one who could be in trouble here. Maybe not criminal, but I would think the licensing people would like to know they are giving people bad financial advice. Actually, giving any financial advice is crossing a line.
You are REALLY going to need a Medicaid savvy eldercare attorney to unravel this. I believe that there is such a thing still as a Medicaid compliant annuity that mom's brokerage account could be used to buy (of course there is a tax hit if she is taking monies out of tax advantaged accounts..)
The couple of months that I was the payee of her social security check, I made sure to document where every dime went. If you are able try to go back and list what has been sold. Give it garage sale prices if you don't know the value. Go back and try to document where all the money from the sales went, so if you have to go to court you have records. Start keeping all your receipts or get copies of receipts if you can. Most of all make sure your brother isn't left unsupervised with your mother (if you can help it.) I wish you the best. I'm so sorry you and your sister are going through this. I thought families only fought when there was money involved. I never thought my sister would do anything like this to me. In the end my mom knows I lived for her and I love her with all my heart. We are best friends and nobody can ever take that from me. Best of luck to you. Praying for you and your family.
Are mom's stocks/IRA/CDs being sold to fund mom's care?
Lovely.
Really hope you fraudsters get caught, prosecuted, and made an example of.
What sort of social worker did you sister talk to? Was sister applying for Long Term Care Mediciad or Community Medicaid?
And would you mind telling us what state mom lives in; Medicaid is a very state- specific program.
Your sister was wrong. Whether she is aware of it or not, she is hiding assets. This is fraud. No transferring of monies or property is allowed in the Medicaid five year look back. These transfers will need to be reversed. The houses need to be sold at fair market value. Same with cars. The household stuff...if there are any antiques they needed to be appraised and when sold, money goes towards Moms care. Regular household stuff can be sold or given away and the money put to Moms care.
Your brother is right. And no one should be "pitching in" because sister should be using Moms money for her care. Medicaid allows one house and a car. The second house would have to be sold as any xtra cars. Once the money is spent down, then you can apply for Medicaid. Which should be when ur getting about 3 months from running out of money. Be aware Medicaid does not regularly pay for ALs. In my state, they may pay after at least paying privately for 2 yrs. Some states have vouchers. So u may want to ask the AL if they except Medicaid.
You need a lawyer at this point and one very well versed in Medicaid. You may have to undue what has been done or at least show the money is there for Moms care. You may be able to use Moms money for this. Be aware too, that Moms SS will be needed to offset the cost of her care. There will be no money to keep up a house. Even though Mom is allowed to have a house, Medicaid needs to be aware of anyone living there and it can't be rented without their knowledge.
Believe me, your sister is not the only person who has no idea how Medicaid works. I think when people are setting up retirement planning, explaining basic Medicaid needs to be included. I was lucky, my Mom lived from pay to pay. The money used for private pay was Dads life insurance. Her house sold after her death. I was able to pay her Medicaid lean from the proceeds.
Good luck and come back and tell us how things worked out. We all learn from others experiences.
Of the top of my head I believe our moms SS income is 780 a month, her her total incomes are 3400. All of which is going to her care.
Medicaid will partially cover this particular AL, though they have a limit on how many they will accept at a time.
Planning for Medicaid applications should be happening while you spend down the assets. Everyone with an elder in care who isn't filthy rich should be making sure they will have a clean Medicaid application. It's not anything sinister.
I think it's much more likely that they are doing their best but making mistakes. I think the "Medicaid fraud" posts are out of line. People come here for advice. We've all already got plenty of shame, thanks.
Is there a reason you think that government programs, that are paid into by me and everyone else, should pay for mom's care?
If I were your brother I would be calling Adult Protective Services, the police, the district attorney, and yes, an elder law attorney to have guardianship and conservatorship assigned to a third party to have everything you and sis have done audited. From what you say, emergency guardianship and conservatorship may be sought and easily awarded, by a court, to APS. Mom needs protection from you and sis. What you are doing is illegal and a felony.
Hopefully you and sis can get this fixed, everything undone, without long term implications.
Third party having control might be the way to go, as our brother is the last one we would want in control. There is ample reason he was never given POA in the first place.
Previously our brother couldn't even be bothered to call our mom, now that he can't work due to corona he seems to be in constant contact.
Medicaid would have allowed your mom to keep a certain amount in home equity even if the chances of her returning to the home were remote. Once you sell, all that money will be considered available for her care and Medicaid won't pay a cent for her care until it has been spent down. This is true even if the sale goes through with your sister as the owner. (Unless she transferred these houses into her own name over five years ago.)
You need to talk to a lawyer. You and your sister are making some big mistakes.
And for what it's worth, the only one who can assign POA is your mom. If she is no longer capable to do that, your brother's only recourse is to file for conservatorship or guardianship with the court. Your grandma cannot revoke anything.
As of right now our moms income between SSI, rental home and everything is $3400 a month, her rent at assisted living and memory care is $5200. We are currently making up the difference, which is why we are looking into selling the house and have sold stocks.
Medicare is available to everyone over 65, but it does not pay for long term care. Make sure that you all understand the very substantial differences between these two programs.
As to Medicaid, in most states, there is a 5 year look back period for financial records. Assets must not have been transferred or gifted. A house, a vehicle and most personal belongings are not "countable" assets for Medicaid purposes.
Are you working with an eldercare attorney on the Medicaid application? Or at least the SW at the AL to understand what is a countable asset and what sorts of transfers are allowed?
Her assets include 2 houses, one of which is a rental that we had appraised