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My elderly mother who suffers from Dementia and Step father cannot no longer care for themselves. What are my rights ?

Pinson, AL |

He can bearly walk even with walker? How can I get them help? He is a against any move of any kind but I want my mother to live with me, he will go to nursing home. will funds be split to care for each or does the nursing home get everything? They now live alone, 82&87 yrs old he has no family left she has 3 daughters. Only me locally.Concerned for safety and well being. He refuses help!

Attorney Answers 4


  1. You should start out by consulting with an experienced elder law who can assist by getting a guardianship for your stepfather allowing the guardian (you I assume) to place him in a nursing home for his own safety. Since stepfather will be going to a nursing home, and unless cost is no object, you will be looking at Medicaid planning. Your mother will be entitled to exempted assets and what is called her Community Spouse Resource Allowance. She will also get a Monthly Minimum Maintenance Needs Allowance consisting of part of his income. Since how these resource and income allowance impact each family differently, depending upon what they have going in, the elder law attorney will want very specific information to tailor the plan for your family. Legal fees may cost a month or two (more or less) of what a nursing home costs, but it will be worth it.


  2. You need to contact an Elder Law attorney for advice. These cases are very fact specific. Generally, unless you already have power of attorney over your mother, you are likely going to have to file in probate court for a guardianship before you can do anything with her. Unless everyone agrees, there will have to be a hearing to determine if that is best for your mother. If she has assets and/or income, you will need a conservatorship to manage her money. If he has to go into a nursing home, medicaid will pay as long as he has few assets. Some of the assets are exempt from claim my medicaid and your mother could keep those. She is also entitled to keep her income and a portion of his to maintain a minimum monthly maintenance allowance.
    Again, this is very fact specific so get an Elder law attorney to help you with this medicaid planning.


  3. You have no rights unless your mother gave you a power of attorney. If you are willing to spend some money, you should consult a local elder law attorney to discuss options possibly including applying for guardianship over your mom. However, courts are usually reluctant to separate husbands and wives.

    Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.

    Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.


  4. You need to file for guardianship and possibly conservatorship for each of them. As the other lawyers state the facts of how much she will get depend on the facts.

    There are many factors that can affect how best to handle this matter and the best advise is usually to hire an attorney immediately. Unfortunately the advice above is a guess that is based on very scanty facts. Circumstances of all sorts can change the ultimate answer you need. If you want to know how best to handle the situation, make an appointment with an attorney and get good solid advise based on more exact facts. The money spent might give you the peace of mind you need. The information provided is not intended as legal advice that can be relied on in part because we do not have the entire the situation. No Attorney/Client relationship is intended, implied or created. We are a debt relief agency and we help people file for relief under the bankruptcy laws.

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