WHEN YOUR LOVED ONE IS ABUSED IN A NURSING HOME: A PERSONAL STORY

My sister opened the door of our mother’s nursing home room one afternoon just in time to see the nursing assistant hit her. It was a real haymaker that snapped Mother’s head back.

“Why did you hit my mother?” my sister asked.

“I asked her to sit up and she didn’t,” the young woman replied. Our mother was....

….FULL ARTICLE

MARRIED COUPLE MEDICAID ASSET PRESERVATION USING RESOURCE ASSESSMENTS

Medicaid Resource Assessment are an important tool to understand and utilize when one spouse is in need of long term care. A portion of the Medicaid rules is designed to protect the community spouse (spouse at home) from impoverishment and unnecessary dissipation of family assets. Only the institutionalized spouse (spouse in a facility) is required to have assets of $2,000 or less and a pre-paid funeral.

….FULL ARTICLE

CAREGIVER SUPPORT GROUPS: IS THERE ONE THAT’S RIGHT FOR YOU?

If you’re a caregiver, you may have already read articles about the importance of preventing burnout. Usually these articles include a suggestion to join a support group. Perhaps you’re reluctant to do so because you wonder what caregiver groups are all about and whether joining one would really help you.  The overall goal of caregiver support groups is to enhance participants’ coping skills through mutual support and information sharing. Objectives may include:.....

….FULL ARTICLE

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Most elders still have decisional capacity and the free will to gift assets unequally among their intended beneficiaries and heirs. Just because an individual family member receives a larger gift than another does not necessarily mean that elder abuse has occurred. Each situation must be viewed as unique and the facts of the case examined to determine the intent of the gift.


Families who may want to engage in asset preservation planning would be well advised to seek competent legal advice, preferably from an elder law attorney knowledgeable in federal Medicaid rules and the use of such planning tools.

We, as elder law attorneys, are often asked to explain the differences between a legitimate asset preservation plan and elder financial abuse. The key factors to look for are the intent of the elder adult and the intent of the recipient, usually an adult child or children, who are involved in transfer of assets.


Intent by legal definition means the exercise of intelligent will, the mind being fully aware of the nature of the consequences of the act which is about to be done.


So we ask, is the elder transferor fully aware of the intended results of the gift? Did the elder participate fully and consciously in the plan for the transfer? Was the transfer permitted under a power of attorney document which authorizes gifts? Was the recipient of the gift a trusted and responsible adult whose stated intention is to use the gift for the benefit of the elder adult, should that become necessary? Is the gift retained in a segregated account to be available for return to the elder adult if the need arises? Is the gift part of an overall plan to protect the elder’s accumulated resources for her family’s future or to place the assets in a protected environment for future supplementation of the elder’s life style? Was the gift part of the family’s decision to protect assets of a mentally disabled person or elder with dementia or their spouse? If these questions are answered in the affirmative,

DISTINGUISHING ASSET PRESERVATION PLANNING FROM ELDER FINANCIAL ABUSE

then we are talking about asset preservation.


On the other hand, have funds been converted from the elder’s ownership for nefarious reasons? Financial abuse is the theft or embezzlement of money or any other property from an elder. Has the wealth been taken from the elder adult by intimidation or through persistent solicitations on the phone or in the mail? Does the recipient of the funds only visit the elder when she is in need of “just a little loan” from Mom? Is the person receiving the funds a new friend or a caregiver? Does the elder appear to be confused or directed in her responses, especially when attempting to manage her banking? Has the money been transferred with no protection of a segregated account and no intention to retain it, in case the elder were to need it? Have the funds been spent on or for the benefit of the recipient of the funds? Has the elder been brought to the attorney’s office for a power of attorney “over” her? Does this would-be power of attorney replace a long standing agent established in another power of attorney document? Is the gift of assets out of sync with the elder’s previous estate plan? Does the elder understand that beneficiary or payable upon death designations on bank or investment accounts circumvent the provisions of her will? If these questions are answered in the affirmative, then it is likely that financial abuse may have occurred.

AMY E. DOUGHERTY

Amy E. Dougherty has been with Bluegrass Elderlaw, PLLC since 2012. Amy focuses her practice on assisting older persons in qualifying for Medicaid long term care using Wills, Powers-of-Attorney, Advanced Directives, and Trusts.  She also advocates for clients before Social Security, Medicare, and Medic-aid agencies and defends against involuntary dismissal from long term care facilities. Previously, Amy practiced elder law for Legal Aid of the Bluegrass.

more articles by amy e. dougherty