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My mother is in a nursing home and has a pending medicaide application. How can I prevent my brother from withdrawing $.

Boston, MA |

My mother's medicaide application is pending and my brother has withdrawn $1000. If he does not explain this withdrawal (the Nursing home is waiting for payment) he can hold up the medicaide application. What recourse do I have. I signed the admission papers as HCP but he is the POA and agreed in writing (a previous legal settlement) that she should go to this nursing home.

Attorney Answers 4


  1. Your question is a little unclear and has multiple issues attached. The first issue is that of a penalty associated with the withdrawal. Because you have filed the application, I am assuming that your mother was otherwise eligible to receive benefits. That means that she had spent her assets down below the $2,000 threshold. If that is the case, the withdrawal may not be penalized as she was allowed to have the $2,000 and she distributed a portion of her assets that she was permitted to retain. That said, you may still need to explain the withdrawal, which could very well result in a problem if the case worker asks for subsequent bank statements that reflect the withdrawal.

    Obviously, if the withdrawal was for your mother’s needs or expenses, that also should not be a problem.

    However,, it sounds like the money taken was in fact needed to pay additional expenses and now you may not be able to pay those expenses. That also is problem; however, the reason for the withdrawal will play into how the situation is resolved. If the withdrawal was for a legitimate purpose, then you will need to negotiate with the nursing home as to how their invoice will be paid. If the withdrawal was for illegitimate purposes, i.e., your brother took the money, now you have a bigger issue on your hands. He has a fiduciary duty to act in your mother’s best interest. It also sounds like there might have been some court action that requires him to act in a particular way. I would suggest that you contact the attorney that represented you and discuss the matter with him. You may need to petition the court for a conservatorship to void his power of attorney.

    *** LEGAL DISCLAIMER I am licensed to practice law in the Commonwealth of Massachusetts and have an office in Reading. My practice is focused in the areas of elder law, estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.


  2. Since he had your mother's POA, he had access to the money. (I am assuming it is a POA to handle her finances.) It really depends upon what he used the money for. If he spent it on her needs, then there probably isn't going to be a problem. If he spent it on something or someone other than your mother, than there probably will be. Either way he eventually will need to explain what he did. I would suggest to him that if he doesn't cooperate and talk to the people at Medicaid, he may end up talking to Adult Protective Services and be trying to explain why his withdrawal doesn't constitute exploitation of a vulnerable adult.

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  3. It seems obvious that if your brother spent your mom's money on your mom you wouldn't have much of a problem with that... so I'm assuming that he took the cash for his own purposes. If the financial power of attorney allows brother to make gifts to himself, you've got a divestment problem with MassHealth that may lead to your mother having a penalty period before the nursing facility will be paid by the state. If the power of attorney does not authorize brother to play Santa for himself, your brother committed fraud and elder financial abuse. Neither is good, so let's hope there are many cases of Depends piled up in his garage...

    This is not legal advice. I am not your lawyer. You are not my client. You cannot rely on my response to your question. My response to your question is probably worth exactly what you paid for it. You don't get to sue me for anything. If you'd like to sue me, well you have to hire me first. Here's how you can hire me! #1 Call: 1-888-463-2843 #2 Email: david@davidcarrierlaw.com #3 See me on TV! www.woodtv.com - go to the Ask the Expert tab! #4 Listen to my radio show (2 full hours every week!) www.woodradio.com - go to the podcast section.


  4. If your mother's assets were "spent down" to $1,600 prior to the application, removal of any portion of that funds following the application should not trigger a problem as it is not supposed to be part of the review.

    Attorney Rosenberg is admitted to practice in Connecticut and Massachusetts, and currently practices in South-Central Connecticut with an emphasis on estate planning, elder law, probate, and tax matters. He may be contacted confidentially by email at Scott@ScottRosenbergLaw.com or by phone at (203) 871-3830. All correspondence through this website appears publicly, is not confidential, and does not create an attorney-client relationship between you and Atty. Rosenberg. Discretion should always be employed when posting personal information online. ~~~~~~~~~~~~~ All online content provided by Atty. Rosenberg on this and other websites is provided for general informational purposes only, and does not constitute legal advice. All content is general in nature. Attorneys are unable to ask the questions necessary to fully understand the legal issues faced by any particular poster. Postings and responses to questions only provide general insights on the topic discussed. They are not tailored to any reader’s specific situation, will not be accurate in all states, and are never updated or maintained to reflect changes in the law. No person should take action based on the information provided by anyone on Avvo.com or any other law-themed website without first consulting a local attorney with significant experience in your area of concern. Persuant to Circular 230, no online content may be used by any person to avoid taxes or penalties under the Internal Revenue Code.

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