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My parent has had a stroke. She has no real assets..a stock worth about $10,000. She has no will and will not make any

Diamond Bar, CA |

decsiions before or after the stroke. What we have now is debts and a very sick person who may or may not recover. What is the best way to protect her small assets? We may need it for final do we settle her debts? A nursing home may be needed-she has insurance.
thank you

Attorney Answers 5


I am sorry to hear this. It is a hard position to be in and stressful on top. Your parent may qualify for MediCal or other assistance. You need to see an Elder Law specialist in the Diamond Bar area. The Los Angeles County Bar Association will be able to refer you to one; many offer a free initial consultation.

If you liked this answer, click on the thumbs up or vote it best answer! Thanks. Eliz. C. A. Johnson Post Office Box 8 Danville, California 94526-0008 Legal disclaimer: I do not practice law in any state but California. As such, any responses to posted inquiries, such as the one above, are limited to a general understanding of law in California and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as legal advice can only be provided in circumstances in which the attorney is able to ask questions of the person seeking legal advice and to thus gather appropriate information.

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I believe that you may have to file a petition for conservatorship as your parent is not presently fit to make any financial decisions or health care decisions. Upon the granting of a conservatorship, the conservator could then make decisions that are necessary to preserve your parent's assets.

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If your mom dies without a will, state intestacy law will cover her estate. While it may or may not be too late to protect assets at this point, a visit to a local elder law attorney would be the only way to find out your options. Typically funeral expenses and expenses of last illness get paid before other debts, but all debts come before beneficiaries.

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 (L.L.M.) in Taxation from N.Y.U. School of Law. Visit for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax and for timely updates. Information on both Avvo and 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.

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Having a stroke does not necessarily mean that your mother is incapacitated in regards to estate planning. You may want to have her execute a power of attorney to sell the stock. The stock, is probable NOT an exempt asset, so if she fails to sell the stock it would have to be used for her care. If it is determined that your mother is incapacitated and to be able to make decisions on behalf of your mother, if she did not have powers of attorney in place, would be to file for conservatorship. Additionally, you should plan on applying for Medi-Cal to cover her medical costs.

No legal representation exists by virtue of this answer. It is recommended that you contact an attorney directly for a more complete response.

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In order to qualify for either residential care Medi-Cal or in home supportive services IHSS your mother can only have $2000 in non-exempt assets. For in facility care purposes, this year (2012) California allows transfers of less than $7,092 to be made without causing a penalty period during which a Senior would not be able to receive Medi-Cal (with some exceptions). These gifts can actually be made to the same person each banking day (gift is not completed until it clears). If your mother were to gift $6900 to you and the balance to someone else she could qualify for either program. IHSS does not penalize transfers but it is foolish to qualify for that alone when a higher level of care may eventually be needed.

If your Mother is competent, explain this to her, perhaps she can be moved to act or sign an enhanced power of attorney that allows you to do this for her. If she is not competent, and has a power of attorney in place, it may be possible to use that power of attorney to make the gifts.If she is incompetent and there is no power of attorney -- the I'm afraid the other responding attorneys are correct and only a court action will allow these transfers. Unfortunately it is likely that such a court action will take too much time and cost too much to pursue.

I hope that this answer is helpful for you and your family.

Joel S. Weissler
Attorney at law

Weissler Law Group
2635 Camino Del Rio South #301
San Diego, cA 92108

(619) 281-1888

DISCLAIMER: Nothing in this post or transmitted by email should be interpreted as legal advice unless I have been retained and you have made a deposit towards my fees. This post is intended to help the person posting the question to ask the right questions with the attorney of their choice. Your time to act may be very limited and this could substantially reduce your rights and options. Do NOT rely on anything I have written here -- You should contact a lawyer in your area immediately after reading my posting. I am licensed to practice law only in the State California. For questions connected with the laws of other states you should seek an Attorney in that state to advise you. The following disclosure is required pursuant to IRS Circular 230: unless otherwise expressly indicated, any federal tax advice contained in this communication, including attachments and enclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.

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