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James Cummings Siebert
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James Siebert’s Answers

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  • Can a family member be evicted from a house that is paid for to pay for nursing home costs for their mother?

    I am POA for my 90 yr old mother who is in a nursing home. She knew at the time that her house was to be sold when she entered it but thought it had to be sold upon her passing.. She has been in the nursing home for 1 1/2 yrs and now They want the...

    James’s Answer

    Your question cannot be answered based upon the limited information provided. I am an Elder Law Attorney and there are several possible answers to your question including situations where the house might be able to be transferred to your brother and your Mother qualified to have Medicaid pay for her nursing home expense. Why did your brother never leave home, Is your brother disabled? While your mother is now in a nursing home, did your brother provide care to her for a period of at least 2 years prior to her going into the nursing home where without the care she would have had to go into the nursing home? Depending upon the answer to these questions, you might have a possibility of saving the house. However, the process is extremely complex and expensive. I am not sure what advise you received from the lawyers to whom you paid all the money, however I would guess that none of them were Elder Law Attorneys. I would recommend that you do not resign as agent under your Mother's power of Attorney until you have talked to an experienced elder law attorney. You may need the POA in order to protect your mother, your brother and yourself. You must understand that it is not the State that will sue for non-payment but the nursing home. If you signed the nursing home contract on behalf of your mother or as the "Responsible Party" you might have exposed yourself to personal liability. Many nursing home contracts have clauses which makes the responsible party, which is generally the agent under a POA, personally responsible generally without you even knowing it. Resigning as agent under the POA now will not necessarily relieve you of liability under the nursing home's contract but may make it difficult to protect your mother, your brother and yourself if you do resign, It is extremely important that you retain an Elder Law Attorney immediately to have him or her review what has occurred and what options you have at this point. While you may have to expend money to pay the Attorney, the amount you pay the Attorney will probably be a fraction of the potential financial loses suffered by your mother and yourself, not to mention how you would plan on paying for or providing care for your mother if she is involuntarily discharged from the facility for non-payment. Good Luck.

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  • Due to high property taxes, sell home, put dad into nursing home, pay expenses, and still apply for medicaid when well runs dry?

    Dad's property taxes are high and he needs to go into a assisted living situation. Can we sell his home and use the proceeds for his care at new home without penalty from Medicaid (which will be needed later on). If we don't sell, we can't pay p...

    James’s Answer

    I believe that it is essential that anyone who finds themselves in a situation such as this, or has legitimate concerns about paying for long term care for a member of their family or other loved one, consult with an experienced Elder Law Attorney as the very first step in dealing with the situation. The laws concerning Medicaid coverage of long term care expenses are extremely complicated, and unfortunately many individuals are penalized or denied benefits as a result of innocent actions done in a good faith belief that they are allowable. Frequently families take actions based solely upon what their friends tell them they did successfully, without taking into consideration that the laws concerning Medicaid eligibility have changed dramatically in the last few years alone and actions which once were allowable are not any longer. In addition, individuals and families are unaware that Medicaid coverage is not a right and that the burden of proving that the qualifications have been met rests solely with the applicant. This can create a great deal of difficulty for a Medicaid applicant and his or her family, since they believe they have met the qualifications as set forth in the law without being aware that frequently the State has specific criteria or evidentiary requirements, as well as strict procedural requirements, many of which are unpublished, which you must be meet to satisfy the State that you have met your burden of proof. What that means is the State will frequently penalize or deny the benefits for an applicant even though the State knows that an applicant is qualified and should not be denied or penalized, because the applicant failed to follow a set of rules and procedures that they don’t even know exist.
    Your question contains many common misconceptions regarding Medicaid. The concept of spend down is not necessarily a simply one, though many will try to convince you that it is as long as you spend the money on them. The first thing you want to address is whether you have legal authority to assist your father if he no longer is capable of handling his own medical and financial affairs, including applying for Medicaid benefits. Even this matter is not simple when considering Medicaid eligibility, because many of the actions which may be necessary to assist your father will not be authorized by standard form Durable Powers of Attorney. When there is a possibility, even a remote one, that someone could need Medicaid to pay for long term care, then they need to have an experienced Elder Law Attorney review and or prepare their Estate planning documents.
    The good news in regard to your father’s situation, it would appear from the facts presented in your question, that with the assistance of an experienced Elder Law Attorney, your father should be able to use his assets for his benefit now without jeopardizing his qualification for Medicaid benefits when he needs them. Obviously, an actual determination of what needs to be done can only be made after a careful examination of all of the many facts relevant to your father’s circumstances. Please feel free to contact my office if you would like an appointment to bring your father in to discuss his estate and elder planning needs. Good luck.

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  • I am in a nursing home and on disability. Medicaid has been paying my bill minus my social security.

    My dad passed away about a month ago leaving my son and I a good some of money and real estate . Can Medicaid come after me for the money they paid to the nursing home?

    James’s Answer

    The State of Illinois has the legal right to recover money expended on your behalf. You have an obligation under Illinois law to inform the State of your receipt of any asset or amount of money above the exempt limit within 10 days of receipt of the asset. The other Attorneys are correct in the information they provided. In Illinois a disclaimer of a right to receive an inheritance is an improper transfer which would subject you to a period of ineligibility. There are potential things that you might be able to do to preserve some of this money for your future use or that of your family, but you must seek out and retain an experienced Elder Law Attorney immediately. You must understand that timing is essential in most any plan to preserve as much of the inheritance as possible. Money received while you are Medicaid is treated as income in the month it is received, subject to Medicaid income limitations; however it is not an asset for Medicaid spend down purposes until the first day of the month following your receipt of the money. This means an experienced Elder Law Attorney might be able to take advantage of this short window between receipt of the asset and the first of the following month to implement a plan on your behalf. However any such plan takes a lot of work and planning and so it is essential that you retain the Elder Law Attorney sufficiently in advance of the anticipated distribution date from your father’s Estate. This is an extremely complex area of the law and successful actions to preserve assets post-Medicaid approval are much more difficult than plans taken prior to approval. The rules regarding allowable spend down are different post-Medicaid approval. The information you provide is inadequate to provide any actual suggestions as to a course of action, other than the most important one which is hiring an experienced Elder Law Attorney immediately. In addition to the suggestions the other Attorneys made for finding an Elder Law Attorney, you can contact the Illinois chapter of the NAELA for a directory of qualified Attorneys near you in Illinois. Good luck.

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  • How do I transfer r/e property from my parents (now deceased) RL Trust to my RL Trust? Is there transfer tax?

    I am trustee of trust (both) and beneficiary.

    James’s Answer

    The terms of your parent's Trust control the handling of all Trust assets. You indicate that you are the beneficiary of the Trust; however they may be other issues to consider prior to any distribution. Obviously, you must confirm what assets are in the Trust, including whether this real property is an asset of the Trust. Unfortunately, it is not uncommon for people to create a Trust but fail to properly fund the Trust. While your parent’s revocable trust may avoid the need to probate their estate it does not avoid the responsibility for paying their debts. As the successor Trustee, you are a fiduciary and owe a duty to comply with the terms of the Trust. This is very important as your potential personal liability can be quite high for errors made while acting in any fiduciary capacity, if you are uncertain how to handle the Trust administration I strongly recommend that you consult with and possible hire an experienced Probate or Trust Attorney. That Attorney can review your parents Trust, advise you of your obligations under the terms of the Trust and assist you with the procedures for finalizing the Trust administration as well as the transfer of the real property. In Illinois there will be no transfer tax for real estate being transferred out of probate or a trust upon an individual's death, as transfers de minimis value, usually less than $500.00, are exempt from purchasing transfer stamps. Since this transfer is for no value, there will be no transfer stamp based upon value, however in Illinois many local municipalities will require you to obtain an "Exempt Stamp" which of course you will have to pay them to get. In addition many municipalities have other requirements to issue transfer stamps or exempt for the transfer real property in Illinois, such as inspections, requiring certain repairs after the inspections, paying water bills or other outstanding monies owed to the municipality. Good luck.

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  • Do we have to sell mothers home to get medicaid for mom to move into skilled care?

    Mom getting out of hospital and going into respite care. She has dementia and we would like for her to stay at nursing home after respite for long term skilled care. She has some cash to pay for about 4 months of skilled care and then would need...

    James’s Answer

    As an Elder Law Attorney I cannot emphasize enough the importance of you hiring an Elder Law Attorney immediately to assist your family. Your question reveals that you an incorrect understanding of the rules for qualifying for Medicaid assistance in Illinois. In addition what you mean by your mother's two weeks of respite care, the implication that she is not paying for this care. Who told you she was entitled to 2 weeks of respite care? Medicare pays for 2 weeks of respite care but only to those individuals who are terminal and in hospice. On the other hand, Medicare will pay for up to 100 days of rehabilitative care after an individual has been an admitted patient at a hospital for at least 3 full days. If that is the case you may be entitled to more time than you think depending upon your mother's conditions other than the dementia.
    In regard to your mother's home you are also misinformed. Once your mother moves into long term care without the intention of returning home, then her home is no longer an exempt asset. There are certain exceptions to this rule if your family meets the qualifications. However, there are specific steps which need to be taken to either preserve this asset if the qualifications exist, or to allow your mother to qualify for Medicaid payments until the home is sold. These rules are complex and you really need to consult with an experienced Elder Law Attorney immediately. Given your mother’s circumstances and limited liquid funds any delays in seeking proper legal advice could be detrimental. Good Luck.

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  • Mother has a $14k spend down for medicaid - what exactly can it be sent on? Medical bills? Her house? She's been in NH for 4

    months - blind, can't walk, 83yo. Bought a mini fridge for her room; paid off new washer for her house. Can utilities, taxes, insurance be pre -paid? She doesn't need clothes/personal stuff in NH. Maybe a new lift chair?

    James’s Answer

    As an Elder Law Attorney the first question I would have for you was who told you that your mother had a spend down amount of $14,000? Do you mean pre-qualification spend down of your mother's resources or do you mean post Medicaid approval where the State has determined a Spend Down Amount. The distinction is important since in Illinois pre-qualification spend down is not as restricted as post approval spend down which is generally limited to medical expenditures.
    You really need to see an Elder Law Attorney to discuss your mother's overall situation. Your question indicates that your mother still owns her home. Typically if someone enters a nursing home without an intent to return home, then the home is no longer an exempt asset. In Illinois if certain steps are not taken in regard to the home, it may result in your Mother's application being denied. In addition, there are several exceptions to rules regarding homes which you may or may not qualify for which can allow the home to be preserved. In addition, you indicated that your Mother has been in the nursing home for 4 months, but have not indicated how the nursing home bill for that period was being paid. Even if your Mother received the full 100 days of Medicare rehabilitative coverage in the nursing home, that still leaves a period of time that must be paid for privately or by Medicaid. While Medicaid will pay for nursing home care for up to 3 months prior to the date of the application, in Illinois the applicant must meet all the Medicaid qualifications on the first day of each of those three months for Medicaid to pay them. Since your Mother has $14,000 she would not qualify for the pre-application Medicaid coverage as it is above the asset limit. So, whether you have already filed the Medicaid application or not, you must consider what amount your Mother will have to pay to the nursing home which Medicaid will not cover. You need to address that issue prior to making any decision as to how to spend down the balance of the money. These are all complicated questions and issues, and you cannot expect to get correct information from anyone other than an Elder Law Attorney. I would highly recommend that you pay a portion of that money to an experienced Elder Law Attorney to do an overall evaluation of your Mother's qualifications, whether her home can be preserved, whether there are any other planning strategies she might be able to take advantage and to make sure that the allocation of her monies is done correctly so that it does not result in either a penalty period or a denial of benefits. Good Luck.

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  • My husband passed and I am not on the mortgage but do have a quick claim deed. Will it go against me if I foreclose?

    Will I able to get a new home?

    James’s Answer

    • Selected as best answer

    You should speak with an Elder Law or Probate Attorney immediately. Your question raises many questions which cannot be answered on such limited information. The first question I would have is whether the Quit Claim deed from your deceased husband has been recorded and if so does it meet all the legal requirements to validly transfer the property. If so, was the property transferred to you alone, or you and your husband as either joint tenants, tenants in common or tenants by the entirety? The answers to these questions will establish your legal rights of ownership in the property and identify what steps if any you must take to perfect your tights.

    If the mortgage was on the property when you were added to the title, you take subject to that mortgage. That means that even though you did not sign it, the lender can still foreclose and take the property. If you did not sign the promissory note or mortgage, you cannot be held personally liable for the debt associated with that loan. If the property is in foreclosure, there are several important issues you need to address. First, is there any equity in the house which you may be entitled to receive if the house were sold? Is there a possibility of a deficiency judgment, because the loan balance is greater than the value of the house, which the lender may use to seek recovery of other assets of your late husband?

    The answers you seek are not as clear cut as you might think, and if you take the incorrect action you could lose assets which you might otherwise be entitled to receive. Given your circumstances, you need to consult with an experienced Attorney as soon as possible. Good luck.

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  • When step-dad's trust money runs out, will mom be responsible to pay nursing home debt?

    Step dad is in nursing home with dementia, money in his trust is running out. Mom has money in shared bank accounts with siblings totaling 300,000 plus 100,000 in personal acct. When his trust money runs out, will mom be responsible for nursing ho...

    James’s Answer

    • Selected as best answer

    As an Elder Law attorney I am in agreement with the other Attorneys all of whom have advised you to immediately retain the assistance of an experienced Elder Law Attorney. Your mother’s situation is very complex. I will not go into each of the issues which must be addressed, but will highlight several in general terms.

    In Illinois, the spouse’s assets are considered when determining Medicaid eligibility. So based upon the information in your question, as it stands because of your mother’s assets, your step-father will not initially qualify for Medicaid to pay for his nursing home care. Currently, based upon the amount and configuration of your mother’s assets, she would have to spend approximately $290,440 of her monies on your step-father’s nursing home care prior to his qualifying for Medicaid. However, with the assistance of an experienced Elder Law Attorney your mother may be able to preserve one hundred (100%) of her assets if she acts quickly.

    There will be an automatic presumption that your mother’s shared bank account with your siblings belong entirely to your mother. This is true even though you and your siblings are co-owners of the accounts and no matter how long you have been co-owners with your mother. The burden will be upon your mother to show that in fact you and your siblings were not added to the account for estate planning purposes but that you had a true ownership interest in the accounts. This can be done by showing that you and your siblings made deposits into the shared accounts of your own money, and that you have treated the money as belonging to you over the years in other ways including spending some of the funds and paying taxes on income generated from the funds. This is generally not the case so I will assume in your case that more than likely the $300,000 will be considered as belonging entirely to your mother and therefore subject to spend down.
    There are specific limits on the assets and income a community spouse, such as your mother, can have and still have the institutionalized spouse qualify for Medicaid. An Elder law attorney assists his or her Clients the same way a tax or estate planning attorney assists theirs, by using the knowledge of the rules and exemptions to maximize the financial benefits allowable under the law. In that way Elder Law Attorneys assist their Clients in preventing the spousal impoverishment of the community spouse.

    In your mother’s case, not only can most if not all of her assets be protected, but the Attorney should be able to get your mother a portion of your step-father’s income depending upon the amount of their respective incomes and expenses. I have been practicing Elder Law for many years and my office has assisted many community spouses in protecting their financial stability for their remaining years. My office would be happy to assist your mother and step-father in regard to protecting your mother while making sure that your step-father gets qualified for Medicaid so that he receives the best care possible. Your mother may call my office at 847-253-7500 or email at info@jcslaw.com to schedule an initial consultation. If for whatever reason your mother would prefer another attorney, or for anyone else who is in need of an Elder Law Attorney, I would recommend to find an attorney in your area, if in Illinois she go to Illinois Chapter of the National Academy of Elder Law Attorney’s website, http://www.naela-il.org/, or if outside of Illinois then go to the National Academy of Elder Law Attorney’s website http://www.naela.org/ . Good luck.

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  • "no contest clause" in parent's trust. Can benificary sue to remove listed trustee?

    Dad is passed away, Mom is unable to make decisions due to no memory ability. Can I sue to remove a corporate trustee /bank that's not paying bills, bouncing checks to nursing home, hiring their own family to manage Mom's land? Trust says "any c...

    James’s Answer

    Generally, conditions in a clause against contesting a Last Will, a Trust or attempting to set it aside are valid. However, the enforcement of such clauses, commonly known as “in terrorem” clauses are not favored by the Courts in Illinois. Even where they are held valid, though, conditions against contests are so disfavored by the courts that they are construed very strictly. This view is guided by the well-established rule that equity does not favor forfeitures, and in construing so disfavored by the courts that they are construed very strictly.

    In practical terms this means that the Court is unlikely to punish someone who brings a legitimate action in regard to a Last Will or Trust. If the action is brought because an individual thinks they should have received a larger share and the individual has no basis for such a position, then the Court may in fact enforce the in terrorem clause. However, the Courts will not allow someone to get away with a wrongful act, such as fraud or undue influence simply because the person had an in terrorem clause put in the document. In your case the Trustee has a fiduciary duty in regard to the administration of the Trust. If your complaint is based solely on the fact that the Trustee is a corporate Trustee and thus receiving a larger fee, then you should think twice about bringing any action. However, if your statements as to mismanagement of funds including the bouncing of checks and failure to follow the Trust terms are accurate, then the Trustee is in breach of it’s duty and it is extremely unlikely that any Court would allow the Trustee to use the in terrorem clause to shield their breach. However, this is a very complex matter, and one which you should retain an experienced Probate/Elder Law attorney to help you evaluate prior to deciding on your best course of action. Good luck.

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  • What should be done by person who inherits a building through a living trust o& who is responsible for taxes due Aug 2013, ,

    The laywer who handled the living trust has contacted the beneficiary to sign the deed through the trust. The person died march , 2013. What should benificiary do to ensure everything is in order when taking ownership to building, such as income, ...

    James’s Answer

    Whenever you inherit assets through a Trust, the first thing that needs to be looked at is the Trust document itself. Generally, a living Trust will have a successor Trustee who took over the administration of the Trust upon the original grantor’s disability and or death. It is the successor Trustee and possibly the executor of the decedent’s estate who are responsible for collecting the decedent’s assets, paying decedent’s bills and then distributing the remaining assets pursuant to the plan established by the decedent.
    In your situation, the decedent’s trust must be examined to see how the property is to be transferred to you. When real property is transferred under a decedent’s trust, or a Last Will, it can be transferred subject to existing liabilities or free from those liabilities depending upon the terms of the document. In addition, it is necessary to examine the decedent’s trust estate as a whole, since the availability of other assets can determine what and how an asset is transferred. Generally, the decedent’s liabilities must be paid prior to making any distributions to the beneficiaries. So if there is insufficient monies in the Trust to pay those liabilities the property specifically bequeathed to you might have to be sold or you might have to take the property subject to those liens.
    Given the complexity of the matter, you should retain your own attorney to review the Trust and advise you. While the successor Trustee or the Trust’s Attorney may be able to provide you with many of the answers to your questions, their duty is owed primarily to the Trust. In addition, an unsophisticated successor trustee might not understand the terms of the Trust and may inadvertently administer the Trust incorrectly. If you hire your own Probate/Elder Law attorney their duty will be to you alone and any advice provided to you will be free from the influence of the personal interests and desires of the other beneficiaries and of the successor trustee. Good luck.

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