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Emma Sleeth Hemness
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Emma Hemness’s Answers

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  • My Mother-In-Law is being accused of Elder abuse by her friend's family and the charges are false. What can she do?

    My Mother-In-Law is being accused of improper care of her friend that she is taking care of that's living with us. The charges are that she's not being fed and that she's being mistreated. My Mother-In-Law has an open investigation with DCFS for 6...

    Emma’s Answer

    First and foremost, whenever someone is being accused of a crime they should take the situation very seriously and should seek counsel from an attorney with experience in criminal defense AND elder law.

    Second, do NOT presume the authorities are either competent nor just, as there are investigators out there who are neither and who may continue to pursue an accusation despite clear evidence it is false. How and when your MIL interacts with investigators is critical in being sure the case is quickly and correctly closed, but managing that process is foreign to most attorneys who haven't practiced criminal law. No matter how "friendly" an investigator may act or how strong your MIL's urge to "explain her innocence" may be, she should not speak to anyone about the case, investigators included, until she has an attorney with the right skills and experience to direct her actions. We hear the "celebrity accused" use the expression "no comment" so often for a good reason... they have good lawyers.

    Third, assist her to immediately document all of the facts which support her defense. Paperwork gets misplaced, witnesses become disinterested as their initial excitement wanes and details fade from the facts more quickly than yesterday's top 40 music. Gather documents like medical records and provide them to her lawyer. Photograph her lack of bruises (be tactful and consult the attorney first) and her living conditions, list each witness and what they know about the case and have everyone with something to add make a notebook or log of as much detailed information as can be remembered... and do it now, so the memories are as fresh as possible when they are written down. The level of detail a defense can present has a direct relationship to how quickly the investigation, or prosecution, can be brought to a halt.

    Also, if the attorney believes the facts support it, a guardianship might be appropriate as a means of documenting your MIL's good intentions and proper care regarding her friend, but tread cautiously into the guardianship court, as it can become a quagmire of its own...

    Finally, your MIL should continue to provide the friend the positive environment and care she was providing before the accusations were made. An ongoing positive relationship is a good indicator of a false accusation and ending the arrangement would be very unfortunate for the friend... but your MIL should determine how to proceed in this regard, and in every regard, by consulting with her attorney.

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  • My mom has a disability "mental impairment",she never work , is she able to get medicaid?

    she lives with me, she is permanent resident since 2002, she didn't pass the test of citizen because her impairment, we didn't notice her problem in that moment. I need soome help because I had to work and she is not able to be by herself

    Emma’s Answer

    Services for the elderly and disabled in Florida is best described as a maze requring navigation through the expert assistance of a Florida Bar Board Certified Elder Law Attorney. I would seek one out in Orlando immediately, as there are several that are well qualified. These experts in Elder Law can explain ALL the resources that may be available to your mother, including Florida Medicaid (Medicaid AD Waiver, ALE Waiver, Diversion), SSI, and other community resources, such as Community Care for the Elderly, adult day care, PACE, etc.

    Within the vast variety of programs offered under "Florida Medicaid", there are programs which provides services to individuals in need of long term care. Usually, someone who needs "long term care" is in need of supervision or custodial services, rather than direct medical care. Florida has programs for long term care which provides eligible individuals certain services in the home, in an assisted living facility or in a nursing home. The purpose behind services in the home or in an assisted living facility is to try to delay entry into a nursing home by providing institutional level help in these less restrictive environments. Yet, due to budget woes, a person may meet the criteria for the program, but still not be offered these services because there is a long, LONG waiting list for services offered in the home or assisted living facility.

    An eligible individual must meet several critieria, including the need for "institutional level of care". In addition, the individual applying for these services must be a U.S. citizen or fall under the definition of "resident alien". Since you mentioned that your mother is NOT a U.S. citizen, then she needs to be considered resident alien in order to be eligible. Other eligibility criteria involves one's income and asset levels. A single individual must have less than $2000 in countable assets. (Some assets are exempt, such as a car and a home.) A single individual must also have income below a certain level because of Florida's income cap which is currently $2094 per month. In exchange for Florida Medicaid providing long term care services, the eligible person may have to pay almost all of her income to the provider of services (assisted living facility or nursing home) with very few exceptions ($35 and medical supplement premiums, as an example). In fact, under a program of managed care under Medicaid for assisted living facilities, sometimes an individual may have to contribute MORE than her income, which means the family members may have to contribute toward the total cost of care at the assisted living facility.

    Although financial qualification (income and assets) is determined by the Florida Department of Children & Families, waiting lists (and medical need qualification) for the waiver programs for in-home and assisted living facility is usually controlled by the Department of Elder Affairs, CARES department. In addition, you may also want to call your local Area Agency on Aging and speak with one of their information and referral specialists to see what other resources you may be able to obtain for your mother in addition to Florida Medicaid.

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  • Can I bypass using an eldercare attorney and set up my mother's finances to make her eligible for Medicaid in case she needs it?

    My elderly handicapped mother who has Alzheimers lives with us. I am the only child. We love having her be a part of our family, but can see that if she deteriorates more within the years, that we may reach a point when we cannot care for her (my ...

    Emma’s Answer

    Being an adult child caregiver is one of the hardest jobs you will ever have in your lifetime. Please remember to take care of yourself, as well as your husband, as you continue to care for your mother. In my experience as a Board Certified Elder Law Attorney, there are few cases I deal with that are truly "cookie cutter". The rules regarding Medicaid are highly technical and I often lecture to others who are becoming elder law attorneys ... "You simply do not know what you do not know. And, what you do not know may hurt you." Please seek legal counsel from a qualified elder law attorney. It will be the best investment you make in your "peace of mind". Also, be aware that an elder law attorney can assist you if you do need to petition to determine your mother incapacitated within a guardianship proceeding. A number of caregivers encounter this need with persons affected with Alzheimers because the parent refuses to bathe or refuses to take her medication. You do not have the ability to "force" your mother to do any of those things to keep her safe and secure. You must have her rights removed in an incapacity proceeding if you are to obtain legal control over her person in order to keep her safe and secure. If legal documents have been drafted sufficiently, it may not be necessary for you to be appointed guardian as the court will honor the existence of those documents and your decision-making authority for finances (under Power of Attorney) and health-care decision making under the Health Care Surrogate Designation and Living Will.

    As others have commented, you should not "give" your mother's assets out of her accounts titled with you to your sole ownership as it will create a long-lasting penalty period denying your mother Medicaid eligibility. The penalty period can be as long as 5 years from the date of the last asset transferred from her ownership to your ownership. However, a qualified elder law attorney can discuss manners in which to pay you for your caregiving now under a caregiver contract, while mother is in your home, as well as pay shelter expenses. This will help "spenddown" your mother's assets without penalties being imposed. You can also opt to put these funds aside so that you will have sheltered assets for her future needs inasmuch as certain programs of home and community based programs of Medicaid require a share of cost in excess of your mother's total gross income. (The share of cost is usually associated with the Medicaid Diversion program operating within most assisted living facilities.) In addition, if you mother is the widow of a war-time veteran, payment to you as an adult child caregiver is an unreimbursed medical expense which may help trigger as much as $1094 of cash to help pay you or purchase care for you to take a break from everyday caregiving.

    I want to encourage you to seek legal advice from a qualified elder law attorney because there are so many benefits from doing so that will be well worth the fee paid.

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