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I Have the Solution…


By merv,

  Filed under: Elder Law, Estate Planning, Medi-Cal Benefits

I Have the Solution, But No One Has the Authority to Carry Out the Solution!

Introduction
Who Has the Authority
Life Expectancy
Long Term Care Insurance and Reverse Mortgage
Medi-Cal
Net Worth Limit
Loan Not a Gift
Mom Does Not Have Authority
Statutory Powers of Attorney
Gift Giving and Self Dealing Power
Court Action
Moral and Conclusion

Dear Mr. Miller:
Introduction:
My parents live in Southern California. My Dad is bedridden. In fact, he has no idea what is going on?  Advanced dementia. My Mom is taking care of my Dad. She does everything for him. They own a $600,000 house and have about $150,000 in the bank.

It won’t be long until Mom can no longer take care of Dad. In fact, his physician has told us that he really needs a skilled nursing facility. I have checked into the cost. For what he is going to need it is going to be $15,000 a month. Their income is $5000 per month. I’m willing to help to the extent I can, but I don’t have an extra $10,000 to give them each month. I’m still trying to get my daughter through her last two years of college and provide for my own retirement.

They do not have a Living Trust but a few years ago, I printed power of attorney forms off the internet for them. They signed them authorizing me to act for them, but I am worried how effective those forms will be. What are the options?      Nervous Daughter

Dear Nervous: Your parents’ situation is, indeed, dire. And if you try to pick up the financial slack, so will be yours.

Who Has the Authority: There are actually a number of options. But I am going to preface that with what I have had to tell far too many people: I have the solution, but I don’t have anyone in the family with the authority to carry out the solution. That very well may be the situation with your parents. And if so, it will probably require an expensive court solution.

Life Expectancy: First and foremost, you are going to have to come up with an operational assumption as to how long you think Dad will be around. The physicians probably aren’t going to give you a “number,” they probably don’t know themselves. So you are going to have to take all the information and simply come up with a guestimate. Right or wrong, that becomes your assumption under which you are going to operate and create a strategy. If it is only a few months, then the financial problem is somewhat limited but, if for a number of years, then the problem is a whole different ball game.

Long Term Care Insurance and Reverse Mortgage: As to options to get the money, I assume there is no long term care insurance in existence. Or maybe life insurance with a payout feature if long term care is necessary. If there is then you need to contact the insurance company or agent. Assuming there is none or the monthly payout is too small, a reverse mortgage is a possibility. The maximum amount, depending on the lender and the value of the house, is in the $600,000 range. But if your parents are going to run $10,000 in the hole each month, $600,000 will only last 5 years, and that doesn’t count any living expenses for your Mom.

Medi-Cal: Another option is Medi-Cal (Medicaid outside of California). It will pay for the facility and care above and beyond your parents’ monthly income (and much of that income will be exempt from having to be used).

Net Worth Limit: But here’s the catch #1: your parents’ have too much. Their net worth, not counting the house, is $150,000. They can only have $117,920 between them. So they are about $30,000 over the limit. They can give that to you and if they do it “right” they will not be disqualified from Medi-Cal for a number of months.

Loan Not a Gift: So here’s catch #2: Medi-Cal is a loan, it is not a gift. That means that when both your parents pass, they will want to be repaid from your inheritance. After 5 years of Medi-Cal paying out $600,000, the house will go to Medi-Cal, not to you. I can almost guarantee that when your Mom finds this calamity out she is going to be heartbroken and, unless a solution is found, she is going to worry herself sick–right into the bed next to your Dad. Fortunately, there is a solution, transfer the house to a QMap Trust. That will prevent Medi-Cal from getting the house when your parents’ die.

Mom Does Not Have Authority: Ok, so we have solutions, now here’s the problem. Who is going to sign the deed to transfer the house to the QMap Trust or sign the mortgage papers to get the reverse mortgage? Certainly not your Dad as, from your description, he is obviously incompetent. And, although it may come as a surprise to some of our readers, your Mom does not have the power to sign for your Dad without some sort of legal document (beyond the marriage certificate). So now we are left with relying on the power of attorney to authorize someone to sign for him.

Statutory Powers of Attorney: How extensive are these powers of attorney? From your description, it seems as if they are “statutory powers of attorney.” There are two types. The short form simply refers to various “powers” by the power’s name and references the California Probate code for what each power entails. The long form contains the same powers but sets forth the complete probate code sections rather than just refer to them. They are both very basic unless custom powers have been added. In my experience, custom powers are rarely the case, especially if no attorney has been involved.

Gift Giving and Self Dealing Power: Without custom language, it is doubtful that the lender will allow the power holder to sign the reverse mortgage papers. And with no custom gift giving authority you can’t give the house to yourself (and that is what you are going to need to do in their situation to transfer the house to you or to a QVap Trust). Further, under California law, a holder of the power of attorney (you) cannot give anything to himself without specific language authorizing the power holder to do so. Because it is highly unlikely that these two powers appear in your parents’ documents, you don’t have the necessary authority to act.

Court Action: When we want to take action and we don’t have anything granting the authority, the only way to get the authority is by getting a court to grant it. Typically, we would need to have a conservatorship (called a guardianship in some states) created for your Dad. Given that we have one parent who is competent, there is a simplified court procedure that avoids the ongoing expense of a conservatorship. But don’t be misled, although it is simplified compared to a conservatorship, it is not simple and it is not inexpensive. Further, there is no guarantee that a court will approve the request.

Obviously, you need to consult an attorney immediately. Make sure it is someone who has experience with these types of cases, not just the biggest ad in the phone book.

Moral and Conclusion: The moral of the story for our other readers is to make sure parents (and everyone) sees an attorney periodically (every three years or so) to assess the person’s situation and update documents. And if the person is getting elderly or is infirm, then make sure that attorney is experienced in not just basic estate planning but also “elder law,” i.e. Medi-Cal and other issues that affect those getting along in years. Doing it yourself to avoid the attorney fee can be a very costly approach.

8/31/2013

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About Living Trusts

About Living Trusts is hosted by the Law Offices of Merwyn J. Miller, as your online resource center to help you explore these key issues, and others, regarding your estate.

Merwyn J. Miller, J.D.

  • Board Certified Specialist in Estate Planning, Trust & Probate Law
  • Co-Author of legal text book and of “Don’t Go Broke in a Nursing Home
  • Teacher of law courses at public and private colleges
  • Continuing Education Instructor for attorneys
  • Columnist for largest regional newspaper in San Diego County and professional journals for 15 years, Contributing author to the book “In Your Service: The Veteran’s Friend”
  • Masters Degree in Financial Services - Estate Planning
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