Do I have the legal right to distribute gifts from his money to his children before he passes. I know he would rather his children get his money than the state. he pays privately $7,325.00 monthly for nursing home care when his money runs out Medicade kicks in.
The direct answer to your question is maybe. A review of the document by a medicaid planning attorney will give the answer.
However, please understand that neither the "state" nor the nursing home "takes" your father's money. He is requesting medical services for which the providers expect to be paid. If your father has resources he is expected to use them before the taxpayers pay for his care through medicaid. There are many timelines to be cautious of in this type of planning, which is why you need to consult with a reputable medicaid planning attorney. Be wary of any attorney or other professional claiming to be able to qualify anyone for taxpayer funded assistance; it usually requires your father, through you, giving up control of his own situation.
This answer is for informational purposes only and should not be considered specific legal advice, nor does it constitute an attorney-client relationship.
In addition to the advice given to you by my colleague, Ms. Finch, I would add the following:
Whether the Power of Attorney gives you the authority to make gifts is an entirely different issue from whether, from a Medicaid planning perspective, you should, in fact, make the gifts.
Were you to make gifts within five years of when you apply your dad for Medicaid after he runs out of his own funds, the state would penalize dad by delaying the beginning of Medicaid payments until those gifts have been accounted for.
One more thing: it's not automatic that Medicaid "kicks in" as you suggest. Upon filing the Medicaid application, the government conducts a searching investigation of all financial transactions that dad (or you on his behalf) has made for five years previous to the filing of the application. If assets were transferred during that five-year period for less than fair market value, then penalties will apply. I'm not a fan of the five-year lookback rule, but I can understand that if the rules were otherwise, everybody about to go into long-term care would offload their assets, cry poverty and apply for Medicaid.
My advice: Do not make any gifts without first consulting with an attorney skilled in Medicaid planning.
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Please check with an attorney who specializes in Medicaid in your state.
With a power of attorney you can NOT make gifts unless specificially authorized in the power of attorney and by statute. If you make gifts, you may have a problem with Medicaid.
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