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Stephen C. Jones

Stephen Jones’s Answers

29 total

  • In Wisconsin, can a person have a guardian over their estate and a conservator at the same time?

    In Wisconsin, can a person have a guardian over their estate and a conservator at the same time?

    Stephen’s Answer

    Guardianship and conservatorship differ state by state. In some states it is possible to say have a guardianship for financial purposes but a conservatorship for decisions regarding the person's health care decisions. While these do not have to be the same person they usually are the same person or they at least are capable of working together.

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  • Can countable assets be converted to exempt ones?

    My mother does not seem to meet the criteria regarding the apparent $2,000 or less countable assets to qualify for the Medicaid Diversion Program. Under U.S. or Florida law, is my information correct in regards to her elgibility and in addition c...

    Stephen’s Answer

    Converting assets that the state will force you to spend down is entirely possible. That is exactly the type of advice that an Elder Lawyer will work through with you. Often times, depending on the marital status of the family, expenditures on the home that will be occupied by a community spouse will be made in part to protect those assets. However, you must be very careful and gain a clear understanding of what you are really achieving. In many states the home will be exempt during the individuals life but the state may seek to recover any amounts they have expended on the individual's care during what is called estate recovery. If your state allows such a recovery, then you will not be protecting the assets but merely postponing the state's ability to force the expenditure of them. You would be well served in this case to meet with an Elder Lawyer well versed in your state's specific laws and have them walk you though a spend down analysis.

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  • I have a family question that I would like to asked pertaining to my uncle and dad, and counsin.

    my dad's brother has been with us for years, chicago always have been his home. Last year he took ill and I hospitalized him besides other issues with health he was diagnosed with demintia and has progressed over the year but he has ups and downs...

    Stephen’s Answer

    This is a very difficult situation. You are correct to worry that their could be some risk of financial exploitation. Unfortunately, without the proper documentation you do not have any authority to do much of anyting. Often times these situations turn very nasty quickly when people are fighting over an individual's well being. You would we wise to seek the counsel of an experienced estate or elder law attorney to help you through a guardianship process. If such an action proves to be warranted the guardianship is the method through which you can begin to act on your uncle's behalf. In order to obtain guardianship for your uncle you will need to go to court and have it approved by a judge.

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  • My mother is 87 and my dad passed on 2 years ago. My mom wants to leave her 2 flat house to my brother and me when she is passes

    What kind of deed or document do I need?

    Stephen’s Answer

    Your mother could provide for the home to be left to the two of you in her will. Another alternative would be for her to use a Transfer on Death Deed Instrument ("TODI"). The TODI is fairly new in Illinois but is designed to pass the home to the designated individuals upon your mother's passing. With something as important as the transfer of her home, it is well worth the cost to have a qualified estate planning or elder law attorney involved. Even a small mistake in your mother's documentation could thwart her intent.

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  • What things can I do with my mothers money and other assets before she applies for medicade?

    mother may stay in nursing home.

    Stephen’s Answer

    First off let me say that you really want to speak to an elder law attorney that is licensed in the state where your mother resides. Medicaid is a Federal and State program and as such each state's interpretation matters.

    As a threshold question you will want to determine how much your mother has in countable assets and thereby how much is actually at risk. There are some assets that are not counted by Medicaid in determining eligiblity. Exempt or non-countable assets include things like a home (must express intent to return to it), one care, personal items like clothes, one care, life insurance with cash value below $1,500, etc.

    In Illinois if your mother is single she would be allowed to keep around $30 per month of income and $2,000 in assets. Everything else will need to go towards her care before she would be eligible for Medicaid. In other words if she has more than $2,000 she would have to spend that money to pay for the nursing home care before Medicaid will take over. Hence your question.

    One of the first things to consider would be the low hanging fruit of exempt items. These would be expenditures that you can make without Medicaid imposing a penalty. You could choose to prepay your mother's funeral arrangements under an irrevocable arrangement. If your mother still has a home you could make repairs to the home or pay off the mortgage if their is one. You could also look at the purchase of a new automobile for her.

    Once you have exhausted the exempt or non-countable assets, you would want to look at more complicated planning options. That could inlclude entering into caregiver agreements with your mother where you are compensated for providing here with care. It could also take the form of transers to an irrevocalbe trust or outright gifts of money. With any of these more aggressive planning options you need to speak with an elder law attorney from your area so that you understand the potential penalty that might be assocated with the transfers and can have a plan in place for dealing with the penalty.

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  • Can I prevent elderly father from selling his house

    My father is living alone in a house he owns outright. A non-family member has approached him about "trading" his house for in-home care. Father deeds house to individual, and in return individual provides care as needed. We (family) don't thin...

    Stephen’s Answer

    If your father is competant he has the right to do with his property as he pleases and you really cannot outright stop him. You can, however, counsel him on the process and the risks associated with such a transaction. If the house is worth much money at all it is not clear that services being offered are of equal value. That could lead to a situation where your father is determined to have made a gift that would negatively affect his ability to receive Medicaid assistance should he later need nursing home care. In order to minimize such risk there should be a clear explanation in the contract of the services that are to be provided and a log of any services rendered should be kept. Perhaps a compromise solution would be to grant some sort of fractional interest in the property over time based upon the amount of care that is provided. Often times the elderly are either lonely or concerned about how they are going to ensure their care needs are met. Perhaps helping him to develope a comprehensive care plan would alleviate his conerns and prevent such a questionable transaction. Lastly, I would also address your conerns with the non-family member that proposed the trade. Knowing there is a family that is follow his actions and concerned about the transaction may help ensure things are done above board.

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  • What is the most money a person can gift before going on Medicade with in a one year time frame?

    My grandmother has approx. $70,000 worth of assests. She is going to a nursing home soon. How much of this money can she give away with out any ill benifits?

    Stephen’s Answer

    Unfortunately Medicaid does not really allow any gifting. What you are probably thinking of is the $13,000 gift tax exclusion which does not apply for Medicaid. Technically speaking a gift of any amount would result in a penalty period. What that means is that when you go into a nursing home and apply for Medicaid they go back five years looking for gifts or transfers for less than fair market value. If you have made any of those then you will be subject to a penalty period which is a period of time during which Medicaid will not cover your grandmother's nursing home expenses. With $70,000 in assets your grandmother will be told by Medicaid that she must spend down her assets in order to qualify. You would be wise to meet with an elder attorney who could help you achieve the best possible result for your grandmother. There are exempt items she could spend her assets on that would benefit her more than simply paying her money to the nursing home.

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  • Can I give my son a gift of money before going into a nursing home?

    It's my understanding that nursing homes will take all of your money when necessary if you go into their facility. My son has helped me so much, I wish to give him a check for $2000 before entering. Will they see that as trying to hide this money?

    Stephen’s Answer

    What you are actually talking about is if you go into a nursing home and then seek to apply for Medicaid. When you apply to Medicaid they are going to look back for a period of five years and determine if you have made any gifts or transfers for less than fair market value. In this case, since it sound like your sone has already performed the services the $2,000 would be considered to be a gift or transfer for less than fair market value. When you have a transfer or gift during the lookback period, then you are subject to a penalty period or period of time during which Medicaid will not cover the costs of your stay in the nurshing home. You might be able to enter into a caregiver agreement with your son that would allow you to compensate you for services he renders in the future. Say for example if your son was going to make sure that you were being properly taken care of in the nursing home and he was going to take care of your financial affairs. In that case you could enter into a written contract with your son to compensate him for such services. The compensation must be at or below the fair market value for such services and your son would be required to pay income taxes on the amounts that you paid to him. The benefit would be that the money you pay to your son will not have to go to the nursing home during a spend down, nor would it be considered a transfer of assets for your medicaid application. If you are interested in something like that, speak to a local elder law attorney and they should be able to walk you through the process and get the proper documenation in place.

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  • Father-nursing home due to get inheritance. I have POA finacial. What now? Mother lives in their house.Still has 3 dependents?

    Medicaid paying already, house is in almost unlivable condition, parents adopted children at an older age and father had a debilitating stoke. I am a older daughter that gets to figure it out. What do I do? Inheritance may be cash or land.

    Stephen’s Answer

    You really need to speak with an Elder Law Attorney. You will need to be very careful with the money or property that your father is about to receive. An elder law attorney can help you plan for the inheritance and maximize the value to your father and his family.

    If your father receives money, it may well be that you will have to spend that down on your father's care before Medicaid will begin paying again for the cost of his nurshing home care. Medicaid limits the amount of assets that an "insitutionalized spouse" can own to $2,000. Anything in excess of that must be spent down on their care. If your father recieves property you may be forced to sell the property and then spend down the proceeds for your father's nursing home care.

    With proper planning, you may have other options available to you. Based upon the amount of assets that your mother owns, you may be able to keep these assets. The community spouse is generally allowed to retain $109,560 in assets which means the family unit can generally retain $11,560. If your family's assets with the inheritance will exceed that amount, you could spend the excess amounts to make repairs to the house or upgrade your mother's car. Both of those are exempt assets and would not be considered transfers that would result in a penalty period (a period of time during which Medicaid will not pay your father's nursing home care costs).

    Unfortunately, without a great deal more facts and space for this anwer, I cannot possibly spell out all the issues you should be considering and options you may have available. I am in Alton, Illinois and would be happy to discuss your situation with you at no charge or obligation on your part. If you would like to speak, feel free to call me at 618-208-1469. If you would like to check me out before making a decision on calling, my website is www.joneselderlaw.com

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  • We have a mother in assisted living. Is she able to "gift" a certain amount of money per year to her children?

    Is it tax free? Assuming there is no restriction in the contract with the assisted living agency, is there any legal reason why this would be a problem. I am not talking about a large amount or a large percentage of her total asset, but 2 of the...

    Stephen’s Answer

    There are really two seperate considerations here. The first relates to estate and gift tax. As the previous posters indicated, you can give up to $13,000 per person from an estate and gift tax standpoint.

    However, this does not take into account the rules relating to Medicaid. If your mother's needs progress beyond the assisted living facility to a nurshing home you will need to be contemplating how your mother will pay for that care. If there is a chance that she will be wanting to qualify for Medicaid you should be aware those same transfers that are ok for estate and gift tax purposes will hurt you for medicaid purposes.

    When your mother applies for Medicaid they are going to examine the lookback period. In most states now they will look backward for a period of five years to determine if your mother has made any transfers or gifts (such as the $13,000). If they determine she has made such a transfer or gift, then she will be subject to a penalty period. The penalty period is a period of time during which she will not be eligible for Medicaid coverage of her nurshing home care. If your mother has limited other assets with which to pay for this care, these gifts could have devestating consequences to her ability to get the care that she needs.

    There are ways to preserve your mother's assets and a planned gifting program may well be a good strategy. I would suggest that you speak to an attorney that can give you advice regarding both your estate and gift tax issues as well as Medicaid planning advice.

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