I feel so bad about talking about this but has anyone ever considered divorce from their spouse with early-onset Alzheimers to secure their assets? I would still take care on him. My husband wants me to do this. The divorce is his idea so that my assets acquired before we were married would be protected. We have no children together.
I know nothing about this Belinda, but it would be worth checking into. Maybe a Elder care Lawyer, or perhaps someone here has already found out about this. Good Luck to both of you.
I did check with an Elder Care Lawyer and they said that since we were married (5Years)that unless I gift my investment /retirement property to my children that I could lose it. (if we need money for nursing care) Also if within 5 years,if all our money is gone they could take home away from my children to pay for his medical care! Lawyer told us that we could sell my other property and our home and buy a larger home.(Government won't take the home that you are living in) That is not want I want to do. He is only 59 and I am 57. I have to work for insurance and to pay for bills since he can no longer work. He is in stage 3 going to 4. This is such a horrible disease!
Since he can't work, I hope you've started application for Social Security Disability for him. That income, and the eventual Medicare coverages will help a lot. I'd check further regarding the property questions, before making any decisions. Also, get your other legal papers in order---Powers of Attorney foiir medical Care, and durable for financial stuff. Wills, Your name on bank accounts, utilities, etc. Sooner done, sooner off your plate and headaches circumvented. This also sets up legal standing for caregiving decisions. Lots to do, so little time---Feel like Alice?
Welcome to my website. You will find a lot of support and information here. First, let me say that you DO NOT have to divorce your husband. This topic was brought up awhile ago, and our resident expert on the subject wrote quite a bit about it. Unfortunately, at the moment, I can't find the discussion topic, and Jane hasn't been writing lately.
I am going to e-mail her with your question, and when I get an answer, I will post it here for you.
One thing I do know with absolute certainty is that Medicaid DOES NOT PENALIZE SPOUSE TO SPOUSE GIVING. So if your husband transferred everything to you, Medicaid would look at HIS assets, which would be nothing. If your assets are in your name, you are fine. You CANNOT GIFT TO CHILDREN. Medicaid has a 5-year look back, so if you gave them anything within the last five years, Medicaid will disallow it. The newest rule is that it also includes promisory notes - if you and your children signed a paper that said you were LENDING them the money. That's no longer allowed. I went to a lengthy seminar on this, so I know this is the case.
As far as housing goes, laws differ from State to State, but, as I said, as long as everything, including the house, is in YOUR name, and YOUR name alone, you don't have to worry.
Also, the thread "Need Opinion on wills,etc." ... there's a very nice, succinct summary from Jane near the bottom.
I was looking at your posts some more ... I think I'd consult with another attorney or two. If the investment property was yours before you married, and has always been held in your name, it may fall into an entirely different category as far as Medicare is concerned. It sure couldn't hurt to ask.
Started looking into that ... there are indeed differences in the law with regard to separate property. See, for example:
http://www.sayrelaw.com/article4.htm
It says, in part: "Transfers of the separate property of the community (non-disabled) spouse to a third party (a child, for example) create ineligibility periods for the transferor only, and not the disabled spouse, but only after Medicaid acceptance is granted to the disabled spouse."
Now, I'm having a tad bit of trouble understanding this article, but it appears that you could wait (actually, that you should wait) until you've reached the point that you need to apply for Medicaid for your husband before making the decision to transfer your separate property. Once you've reached that point, then there would be a lookback period but only for YOU if YOU needed Medicaid.
It also says that the rules are very complex, and you need a highly-qualified attorney to avoid doing something that will cause you serious problems.
I too have been very worried about assets and losing our home. I took the time to find an elder care attorney just last week, something everyone recommended to me. The first one we saw turned out to be an estate planner - not what you want!. We did find one and although it will cost us some money up front. It will save us money in the long run. I recommend you talk with an edler care attorney first before you make any final decisions. Here's what I found out:
In order to receive any medicaid long-term care coverage, my husband would need substantial assistance with 2 or more activities of daily living. In addition, a long-term care facility that is selected must accept medicaid reimbursement.
There are some income considerations. My DH's social security and pension would be considered his monthly income. His 401K would be considered an asset. My income is not counted. There is a thresh hold of income that determines if they can quality for COPES, a part of Medicaid that covers long-term care at home and in facilities other than nursing homes (adjult family homes or assisted living facilities). In our case, my DH would not qualify for COPES.
Medicaid qualifications allow you to keep 1 home and furnishings and 1 car of any value. I'm happy about this because I didn't want to sell our home. There is a Medicaid cap on countable assets, excluding the house and car. Apparently there is one cap that isn't related to nursing home coverage and one that is. You would need to look into some kind of annuity options on the remaining assets. Your husband should be able to transfer assets to you name (e.g. car, house, etc.) as well as any financial assets (e.g. 401K).
Bottom line, you can get help for your husband without liquifying all your assets. I recommend you look for an elder care attorney. I had also been thinking the same thing but now I know that we can get the needed help without going broke or substantially changing our standard of living. You also make sure that everything is done legally and there are no problems later on. We are getting ready to update our DPOA for finances to give me the ability to gift my DH's assets to me, transfer the house deed to me, and update my will. After all of this, there is no need for my DH to have a will other than a simple will.
Thanks to all that have responded. I got lots of great information from you and other thread about divorcing spouse. I will talk to an elder law attorney about my options. This a a great website to voice our concerns and fears! Belinda from VA.
Belinda, I think (but I can't remember where I read it) that if you're using this property to generate income that you need, it falls under different category from joint assets that are readily liquidated for your husband's care. So if you are getting income from this property (it's rental property, for example) and you need that income to maintain your lifestyle, it may be easier to protect it.
Then another thing to check into is that the rules may be somewhat different because your husband is so young. For example, there's something called a "pooled trust." It would be funded by assets belonging to your husband (I assume this would mean part or all of his share of joint assets), and would be run by a non-profit for the benefit of your husband. Transfers to a pooled trust by persons under the age of 65 are exempt from the Medicaid transfer penalties. Found this little tidbit in:
http://www.begleylawyer.com/Documents/art7PDF.pdf
Note that this document may be a little out-of-date, it was written in 2004, so there may have been some adjustments to exemptions etc since then, but I think this is a very good example of why it can be very important to choose an attorney who really knows Medicaid rules.
One minor point: In addition to your separate real estate property, you need to consider separate retirement benefits, if there are any. If your husband is named a beneficiary on your IRAs, for example, you need to plan to change the beneficiary to someone else once he enters a nursing home. Spousal consent is usually required, which means you need to have a properly drafted POA. You wouldn't change the beneficiary right away, but you do need to be sure you have a POA that will allow you to do so in the future.
You may find the following article interesting. It doesn't have much to do with your particular situation, but it DOES show what a difference the attorney can make when qualifying your spouse for Medicaid (Medi-Cal in California):
You can look up the rules for Virginia Medicaid at this site, and they also list elderlaw attorneys in different states (although I have no idea how complete the list may be.)
Remember: lawyers specialize! Elder law lawyers specialize. So you need to ask a lot of questions about the law practice before you settle on the attorney to help you!
As an example: I wanted an attorney to set up a trust. One woman was highly recommended to me, and her firm's web site said she specialized in trusts and estates. After consultation, she declined to represent me, because she specialized in "court aspects" of trusts and estates, not setting them up in the first place.
Be very careful of transferring assets to anyone other than you the spouse. You can transfer assets to yourself without penalty but it is incorrect that Medicaid will not count these assets. Medicaid counts all assets whether in the name of one or both. It is INCORRECT that they do not count assets in your name alone.
That said, it still does not mean that the assets that are countable would be taken by Medicaid. The spouse left at home is allowed depending upon your State, up to 104,400 of countable assets, this does not count the assets that are non countable such as home etc. then the amount over the $104,400 can be put into a protected annunity for the at home spouse. Also, if your husband is still able to do so you can start liquidating the IRA and 401 a little at a time and move this money into a joint account and then to a regular CD and such so it will be in place to also be allowed for the spousal annunity. This would be done to protect the spouse at home and her future and of course if your husband did not need NH care then it would be there for both of you.
If the 401 and IRA are left in place Medicaid will count the income from them, but only if they have been set to give monthly pay outs, if not and you can liquidate the funds they will require you to do so. If they are set to make monthly payouts then once the NH spouse dies the amount left in the 401 or IRA will go to the estate and then to Medicaid for the amount they have paid on your husbands care.
Once the NH spouse has been deemed eligible for Medicaid, then after a certain amount of time the community spouse can transfer any property she wishes to anyone, but that will start her penality period if she ever needs Medicaid.
Again, do not transfer property to anyone other than the spouse.
Do not try to do this by divorce, there are laws that protect the disabled spouse and you could be considered exploiting a disabled person. Although your husband may agree to the divorce Medicaid could go after you for this, due to the fact that they could say he was not competent to make a decision for divorce.
Thanks for coming on. As I said, I was passing on the information I received at a seminar I attended that was given by people who had worked for Medicaid, and now helped people navigate the system. They told us that what people have to be very careful about is the house situation, because it differs from State to State.
Note to anyone reading this - Jane knows her stuff, so I would trust her information. Jane - wouldn't you advise in all situations regarding Medicaid to check the laws specific to your own State before doing anything?
I thought 401K and IRA's were considered assets from the point of view of Medicaid. These assets would need to be sold to help the spouse get medicaid coverage unless the were set up for the spouse in trust of somekind. I also understood gifting, outside of spouse, would result in penalties for coverage. As an example, if I give or we give $6500 in savings bonds, it would result in a 10 month period of which my dh would not be covered in a nursing home, as example.
Yes Joang, I would tell everyone that most people are not able to navigate the Medicaid system on their own, the problem is that they should get a CERTIFIED MEDICAID Elder Law Attorney when the time comes. Just any Attorney is not versed in the Medicaid laws and they change often. What may be ok today may not be by the time you get to the time you need it. The House is most always safe for the Community Spouse in ALL states, some states have a cap on the value but even most of those States have no cap if the Community Spouse is living in the home. The trick to the house situation is that the community spouse needs to have the home in their own name at some point and time, this is to keep it from going into the NH spouses estate when they die. This can be done at anytime because as I said, the way the laws now are Medicaid allows the transfer to a spouse at any point in the process.(Even if the house is not in the Community spouses name at the point of death, it cannot be taken by Medicaid as long as the Community spouse is still living in it.)
Joang, some of these Seminars are very misleading, they tell you just enough to confuse you and try to get you roped into their care.
One that I went to one time became angry with me as I raised my hand to ask questions, they were confusing the elders and telling them just enough to scare them to death, I asked a question about Annunities, (I already knew the answer) I just wanted the spokesperson to tell the elders about the Annunity. He immediately said "You are asking a question about something you already know, we are sticking to the topic" and then went on to confuse them more. It made me so angry but I could do nothing I was just a guest at the seminar.
To also add to my other post and comment about the 401 AND IRA withdrawals if the Alzheimer is not so advanced that they cannot allow you to do this. Most people would say what a big tax bite, I am not saying liquidate the funds I am just saying take them sooner a little at a time rather than later, In my way of thinking, it would be better to withdraw some each year, get the tax paid, and have that amount invested in CD or some other account that would allow it to be there for the future of the Community spouse rather than be there at the end for Medicaid to take. It would cost less in taxes than it would to loose the whole amount.
Maybe some would say not a good Idea but that is my thoughts.
Also Joan as far as loans to your children or others are concerned, in Most States, you would want to check with an elder law attorney to be sure in your state but MOST all States do still allow this under certain conditions.
If a Loan is made AFTER November 2007 it would have to meet certain restrictions. The restrictions are almost identical to the Annunity allowed for a spouse with a few exceptions.
The Loan has to be written that is is paid back to the lender during the lenders Actual life time according to Medicaid life tables. It has to be paid in equal payments nothing can be deferred and cannot be a ballon payment at the end. Cannot be canceled.
So even these loans are still allowed but not so that you could really protect money, and has to be done with the guidance of an CERTIFIED ELDER LAW ATTORNEY.
I hope I have helped and not confused Please know that I am not a professional in any way, just a person like yourselves and offer this as information only. Do not use this information without contacting a good elder law attorney these are just things you can do in order to ask an intelligent question.
I went to an elder care advocate and she said I need to get in touch with an elder-care Lawyer. She did mention divorce and I can't tell you what I thought of that. At least not politely!
All of this legal/medicaid jabberwocky is so terrible. Isn't it bad enough??
My opinion is that of all the advice offered, the best is to do as Jane said - FIND A CERTIFIED MEDICAID ELDER LAW ATTORNEY. The rules and laws are SO CONFUSING- you need someone who knows what they are doing. And don't forget - you never know when one of those laws or rules is going to change, but the certified Medicaid attorney will know.
I do think, however, that the discussions here can help us identify attorneys to interview, prepare for initial consultations with those attorneys, decide what info to take along, and evaluate candidate attorneys and determine which is the best one for us.
Joan is absolutely correct FIND A CERTIFIED MEDICAID ELDER LAW ATTORNEY, but Synshyne YOU are also correct, the information that I offer is so that when you do see your Attorney you will have sufficent knowledge to ask the correct questions. Going to an Attorney without knowledge dooms you from the start.
DianeT this is for you: 401K and IRA are not considered Assets if they have been Annuitized, as I said before, this means that they are producing and income stream, then it is the income that is counted and not the assets. If they have not been Annunitized then they most certainly are considered assets and countable ones.
As for the penalty period example that you gave, that was under the old Law before the new DRA rules. Now if you were to gift that amount and 5 years had not passed before you applied for Medicaid, the Penalty period would not start until you were deemed eligible and therefore you would have to borrow the $6,500 to pay for the care. You would not have a 10 month penalty according to the value you had gifted, that law is gone.
I've looked in my area for a certified medicaid elder law attorney. But they all say they are certified elder law attorneys. Is the Medicaid part necessary or does the fact that they say they work with medicaid suffice?
There are actual Attorneys who are Certified In Medicaid Elder Law.
You may not have any in your State, Many are Certified Elder Law Attorneys, but not all of them are Certified In Medicaid.
Most likely those who work with Medicaid would be ok, not as good as one Certified in Medicaid, but still better than just Attorney who is not use to working with Medicaid. It is so complex that is why you want to have knowledge when you go.
Even the folks who USED to work with Medicaid that Joan had the Seminar with, unless they stay certified in Medicaid are not up to date on the changes in the law, such as the Loans to Children, they changed the rules for that in July 2007, Bet Joan could go to those same people with that information have them check and re-check and they would find this is True.
I feel terrible about considering divorce (from my husband of five years) but I want to protect my considerable estate for myself and for my children. No one can predict how long a patient may need to be in a nursing home because of Alzheimers. I talked to someone a week ago and her husband was in a nursing home for 6 years. I want to be his caregiver and take care of him until I can longer do so. I love my husband but I do not want to hand over my beach home that has been in my family for 30 years to the government. We hope that he will not need medcaid but can we be sure that he doesn't? He can make clear decisions for himself now. We only own our house together. My husband has been umemployed all except for 3 years of our marriage. This is such a difficult decision.
Belinda, you are unlikely to get what you want to get from a divorce. I'm not giving advice because I'm not qualified to do so, but I do suggest that you talk to a qualified elder attorney. Frankly a divorce attorney won't know what you need to know so you can make a good decision. Your situation is so unusual that you need to see an attorney who knows this stuff.
Also if you divorce your husband you won't have any grounds to be his caregiver and it is possible you won't be allowed to make decisions about him no matter what the paperwork says. So go carefully about that as well.
The fact that he can still make decisions and sign things with full knowledge of what he is signing is important. You have a window of opportunity here that you don't won't to miss. You need wills, powers of attorney and patient advocacy paperwork for BOTH of you and you need those things now. You need advice about your house and your other financial issues as well. You can't make decisions without information.
What about Lizbeth? She and her husband divorced (not to save her assets, but because they didn't realize he had EOAD and the marriage was falling apart) and he moved back in with her after the diagnosis. I don't know whether they've tried to get Government support for him.
Belinda does need to get advice from a really good attorney, maybe two attorneys (elder law and family law), to make sure she wouldn't get into trouble if she went the divorce route and then continued caring for her husband. But when I was surfing on this subject, I DID see advice from medicaid lawyers that divorce might be the only viable option in some cases.
Thank you Jane for all the good information. I did see an elder care attorney who provided me with information. However, I don't know if he was a certified medicaid eldercare attorney. I will need to do some more checking before I do anything. Even though I thought I had good direction, it is amazing what you can find out on these boards and the help and guidance you can get. Dealing with this disease, taking on all family decisions and finances, plus trying to figure out what you need to do in the future is one big maze. Thank you.
I tried to reply but my DH keeps interrupting so I lost my reply. I think divorce is a viable alternative that a person should consider along with all other alternatives. Like Sunshyne mentioned, my divorce was not really calculated. Divorce at this time did not make him eligible for any government help. Things to consider though: My ex-DH is not eligible for my insurance. He pays for Medicare & a supplemental. I am not eligible for FMLA (Family Medical Leave Act) Medicaid look back
Also the elder law attorney said that transfers to children became stricter in 2006 in our state. So you do have to be careful what you read on the internet since it could be outdated. You really have to go to an elder law attorney who is keeping up. She said that if and when ex-DH needs Medicaid, certain things can be set up then e.g. trust to limit income etc.
Belinda, I met a couple who similar to you had been married only a few years and did get divorced when he was dxd with EOAD. She had her own assets, pension, was working (only 50). They both had college age & high school age children from previous marriages. However, this was 4 years ago and the laws may not be so favorable now. Also, it can differ state to state. Also, they only divulged their divorce to close relatives.
Lizbeth, I made another appointment with a certified elder law attorney for tomorrow morning. I have been so upset about all these decisions that we have to make while he is able to make decisions. I forgot that I would no longer have Family Medical Leave if he is not be my husband. Thanks for all your help and ideas!
Belinda K. Not only would you no longer have medical family leave with divorce, I am not so sure that you would even be appointed Payee Representative with Social Security if that time comes due to divorce. There are many protections that you now have that you would loose. Even if you have DPOA Social Security does not recognize this when appointing Payee Representative.
There are many things to consider when making a decision for divorce, I would not take that option in a million years.
Thanks, Jane! I wasn't thinking about all of this. I am glad that I am going to elder law attorney this morning to seek out other options. I really appreciate all your help that you have given me.
Belinda, I would also consider the facts that you would have no say in their medical treatment, can get no medical information on him released to you, can't get Medicare information released to you, and can't have say over burial if you are not married to him. You also couldn't stop the doctors from placing him somewhere you didn't want him to be. It's amazing when you stop to think of the rights you lose if you are no longer married to your AD spouse. The VA doesn't recognize DPOA, and some banks don't either.
Like Jane, I would not divorce my husband for anything!
Jane & Mary, That isn't true. I have say so in my ex-DH medical treatment and have been treated very well and respectfully thus far. You have to sign form for SS to be payee representative. So far my ex-DH is competent to manage his own payments. I would definitely see lawyer before deciding anything about divorce. I don't think there is any shame in divorcing. Everyone has different situations and this disease is so difficult. I would not place a stigma on anyone who needs to get divorced.
I want to add another comment. Divorce does not necessarily mean forgoing a responsibilty or desire to care for you LO. It may mean you are able to provide better for you LO.
Lizbeth, if your ex-husband has signed a HIPAA authorization to release medical information to you, that is wonderful! If he hasn't, and the doctors are releasing information to you, they could get in trouble. I am happy that it is working out for you. I did not mean to place a stigma on anyone making the choice to divorce! I just wanted them to make certain that they are aware that their abilities to take care of their ex-husbands (if that is their wish) may have difficulties. There are ways around it, if the AD patient is still capable of signing the paperwork, as yours is. There is no shame in divorcing. I'm sorry if I gave that impression. I was just trying to show the possible legal implications after divorce.
No problem Mary. I just thinks this whole discussion points out that we have a very broken system here in the US that people who are ill cannot get the care they need and their families have to struggle.
I also believe there are others out there who were divorced before they were aware that a brain disease was perhaps playing a part in their problems and are now after the fact trying to unravel the legal tangles.
...At the very least, I would think that one could petition the court for conservatorship. You do NOT have to be a relative. And the petition can get approved quite quickly if the proposed conservatee agrees to the petition.
I went to an Elder Law attorney and divorce was the first words out of her mouth, but the more I looked into Medi-cal (I live in Calif, and this is what would help pay for long term care) this is my only option. I have no assets to speak of except the house that we live in. The catch is MY income. Our combined income cannot be over 2600.00 a month. Who can live on that when our house payment is 1900.00. I don't know what to do. I have putting it off for months, calling the divorce lawyer that is.....
Denille, Would you be able to put some of your income into a trust? Our elder law attorney said ex-DH will be able to put his excess monthly income into an Income Cap trust so he can qualify for Medicaid, unless of course they change the Medicaid rules.
Sunshyne, The elder law attorney said with the DPOA that we would be able to avoid going to court for conservatorship. This is because my ex-DH is still competent at this time. If he wasn't, it may be a different story.
Lizbeth, I was not placing a stigma on divorce. You have say so in your DH situation most likely because you have DPOA, or else the Medical profession has not yet questioned your relationship. When I said they may not be assigned payee representative with Social Security, I did not say they WOULD NOT,I said they MAY not, have you gone through that process yet? I know that you have to fill out a form requesting to be payee representative, but have you done that? A person could be appointed by Social Security but the Accounting would be quite different than for a spouse, I know that for a fact. I also think they would question the relationship before granting the appointment, they usually want a family member who is willing, that would let you out if divorced.
Lizbeth, I was reacting to the earlier comments that Belinda wouldn't have any say in the care of her ex- if she decided on divorce. I knew she doesn't have to be a relative to get a conservatorship, for sure. And one doesn't have to be a relative to get DPOA, either. There are ways... It's very sad that she has to think about taking such a drastic measure, but there you are.
We really need to change the laws in this country!!!!!!!!!
Jane, My situation may be different than what you have experienced because my ex-DH is still competent and articulate. We just signed the DPOA today. Lawyer met with us twice and determined she was comfortable that ex-DH is competent. SS did not question our relationship. I went into SS office with ex-DH and explained situation five years ago. They said we had to fill out their form which we did. Medical profession has been very nice. They know our relationship. We always explain right away that we are no longer married but we are living together again. I also let them know I have Medical POA. I am sure I would have had more problems if ex-DH was further progressed in disease. That is why it is important to do these things sooner rather than later. I am guessing, these professionals are seeing more ex-spouses, non-married partners etc. as caregivers, so our case is not unusual.
Thanks to all that have commented on pros and cons of getting a divorce. The elder law attorney or assistant was no help at all. She told me that she was not a divorce attorney and could not give me an answer. Still weighing out our decision...