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Along with my friend’s youngest sister, I am health care proxy. My friend has advancing dementia. She is 78. She and her 2 sisters live on property inherited from their mom. The property (a 3 family house and a single, separate house) is held in a real estate trust and the 3 sisters are joint beneficiaries of the trust. At this time, my friend does not have a DPOA or a will. The youngest sister took over paying my friend’s bills and managing her money last yr. at my request because my friend’s utilities kept being shut off when she didn’t remember to pay the bills.


I only take her to dr appts. I have made it clear to the sisters I want NO involvement in the financial stuff.


The sisters think my friend needs to be in a care home BUT even tho’ my friend is low income, the 1/3 interest in the real estate trust makes her ineligible for full Medicaid. Other than the real estate trust valuation, there is no actual money available to pay for her care in a facility.


I am afraid for my friend’s physical safety because she recently left food cooking on the stove and set off all the smoke alarms in the 3 family home.


Through a referral by my friend’s primary care dr., I helped her get signed up for senior home services including install of a Lifeline, Meals on Wheels three days a week and a visiting Homemaker 1 day a week. My friend doesn’t believe she needs ANY of these services but she does! She agreed to “try” them.


I am worried that the sisters won’t honor the fact that my friend has a legal right to her 1/3 share in the property valuation. Since they ALL live on the property, selling it and splitting the proceeds is not an option. My friend and the youngest sister have no children so no heirs. The middle sister has 2 adult children and 3 grandchildren so does have heirs.


Friends have said this is “not my circus” and I agree. But, I want to know my friend is safe and that her rights are upheld.


What should I do?

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Your responsibility as health care proxy is to make medical decisions when and if she cannot make them for herself. The document naming you as proxy should give details about any extended or limited authorization to act on her behalf.

As a friend, you can offer to look at the trust document or help her to contact an appropriate attorney.

Note that the trust may or may not give her actual ownership of the real estate, e.g., each sister may have the right to live in their unit for their lifetime, with the rent on non-beneficiary occupied units covering property expenses, and when all three have passed the proceeds go to charity or other named beneficiaries. So the lawyer will need a copy of the trust.

A lawyer specializing in Medicaid would be best, but may refer to an additional attorney to work out whether she has ownership and can force a sale, or if she can rent her unit for income. If she is still competent on a good day, she needs a financial POA ASAP, and make sure that the attorney doing the POA understands the situation.
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Call APS and ask them to assess her living conditions. You have a responsibility to safeguard her physical wellbeing, as you say; but you have no responsibility - and no authority either - to access resources on her behalf, and it seems that youngest sister hasn't either.

APS might also help untangle the Medicaid issue. My understanding is extremely limited, but as I understand it the Medicaid recovery people don't attempt to force a sale: they place a lien on the occupied property which stays in place until such time as the property is sold, at which point money up to the amount of your friend's share can be recovered to pay for the Medicaid funding. I did think this wouldn't normally affect her Medicaid eligibility, though - are you happy that the application was handled correctly? Is there anyone you can check with?
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Moxxie: Perhaps you should retain an elder law attorney.
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Perhaps you can discuss this situation with an Elder Law Attorney and ask if a "Quit Claim Deed" would legally put your friend in line to qualify for Medicaid. Would the sisters like to buy her out or can she quit claim her third to the State that she lives in? Can she be assigned a guardian who can deal with her financials so that she can qualify for Medicaid?
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The main problem is that your friend does not recognize her limitations with dementia and may not be able to think logically about making a plan for the possibility that there may be a time when she can't care for herself. And also that her sisters do not seem to be looking out for her or helping her. If the sisters think that she should go to a facility, would they chip in to help pay for it? Would they chip in to pay for additional aides to help your friend, if needed? See how it goes with the services that Medicare provides. Maybe she'll find that it is helpful. Talk to the sisters about helping her with her meals. It would be better for her not to do any cooking or microwaving, and also it is common to remove sharp objects (knives and scissors) from people who have dementia. If her dementia is advancing, you need to have a plan B, for when she need additional care. Her sisters should get involved with this. Also talk to a social worker about her options. Your friend may not need a will if the trust is set up so that if a member is deceased the assets go to the survivors. It may be necessary to consult with an attorney about how to get income out of the trust to cover her increasing expenses as she needs more care. It would help if the sisters would be cooperative.
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If your friend is lucid enough to understand the value of her property holdings and know where she wants her possessions and property to go when she passes, urge her to meet with an estate planning attorney. As her illness progresses, this option may vanish and not having her affairs in order may impact her mental health.

In order to make her safe to prepare her own food and remain living where she is, the kitchen could be elder proofed. (Think assisted living). The stove could be disconnected and she could do her cooking in the microwave.

if it is completely unsafe for her to remain living in the family compound, maybe the sisters need to buy her out, so she can use her received family bequest to provide for her safety and well being.
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Your friend has no financial POA. If your friend is suffering from dementia she cannot participate in court actions needed in hiring an attorney, requesting sale of the home (which if held in a trust may not even BE sold).
Your friend needs a Financial POA if she is able to assign someone that duty and is not suffering from dementia so bad that she cannot understand all involved. If not your friend needs a guardian. Other than that, your friends decisions are her own to make.
You really cannot place a person just because you are a health care proxy in most circumstances. This is done by a guardian. A health care proxy does what the document assigning him or her stipulates can be done, and it usually involves making emergency decisions when the principal is unable.
Your friend should be seeing an elder law attorney to set things up as she would like to have them set up, including a will (IF she is able).
You really have no standing to "know my friend is safe and her rights upheld" that I can see if you are not her FPOA or guardian, and watch what you wish for. This is an onerous and difficult job under the best circumstances, with needs for meticulous record keeping and etc.
See an attorney with your friend to find out her options if you are really and truly intent on helping and protecting her. Discuss all options then with an expert from your own state.
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A Trust is set up to protect the property from Medicaid. If done over 5 years ago, the Trust would not effect her being able to get Medicaid. Actually, a house is considered an exempt asset if not in a trust. Medicaid recovers after the persons death by placing a lien on the property.

Your friend may not qualify for Medicaid because her assets are high or her monthly income of SS and pension are over the income cap. In my state the Asset cap is 2k or under. The income cap is a little over 2300. There is a Miller/QIT trust that some states allow that will take care of the overage.

Someone may want to talk to an Elder lawyer about your friend getting Medicaid.
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Who told them that your friend is ineligible for Medicaid?
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