What a cop-out. Surely a good elder law attorney would know whether Medicare would have a fit if you divorced and then continued to live with and take care of him ... ? How frustrating for you!
The elder law attorney has decided not to do Power of Attorney for us because we are persusing divorce. Even my husband's attorney advised us to get an divorce since Medicaid does not honor Pre-Nup agreements. I could lose over $800,00.00, if we stay together. I will still continue to care for him. Bummer, but so true! I would not advise this for everyone but this is the choice that my husband and I decided to make.
Belinda K, I am thinking about doing the same thing to preserve my assets, however, we live in a community property state which means they add up all the assets both parties have, divide in half. Doing this means I lose about $300K to him, so I am still out some substantial dollars. If you haven't seen a divorce attorney, please do so. I was advised that if I divorced him, I would not be able to have POA and would not be able to live with him and be his caregiver. That doing so would still make all my assets vulnerable to Medicaid since they will view it as a sham divorce to avoid Medicaid laws.
I have DPOA for 6 months now. I've not used it. I am wanting to procede with divorce because It is easier to get in her current state as opposed to later. She is agreeable and I have told her that I do not think I can do this by myself and once I get to the point of needing help Instead of a nursing home I intend to find someone who will help me with this. In other words I intend to remarry prior to her death. She understands that I do not have any family support and that it would make things easier for me if I had that support. This gives me the option to remarry and continue to support her.
Just always remember when you consider this avenue to save your assets, you will in most states have to be divorced for 12 months, before Medicaid will help and even then if they consider it to be done to save assets you can have a problem.
I have not moved forward with this. I am struggling with this decision. I want to move forward while she can still go before a Judge and be in sound mind. I would also like to be free to date when she no longer knows me. I do feel guilty about doing this. If I move forward, I will continue to live with her and care for her.
Moorsb. I am in the same position of you, but somehow I do not think that divorce is the ethical thing to do. My biggest fear is that I will consider the divorce as final, and lose my willingness to take care of her. I fear that having it "official" may relieve me of the responsibility, and that it would not change anything financially. I would still support her, and sometimes I am afraid that the temptation to get on with my life would interfere with her well being. My ideal dream would be to find a wonderful lady who could not only love me, but would be willing to help me care for my dw....but then again, I also could win the lottery.....right!
moorsb, if you get a divorce they WON'T LET YOU make decisions about your wife's care.
Forget about talking to a divorce attorney. You need to talk to an elder law attorney in your state to find out what your real options are. And if you do try to live with her and make decisions about her care you just might find yourself guilty of fraud. I'd be really, really careful about that.
I'd like to point out that in the right circumstances I'm one of the people who have told others to get out of their marriage. This is a long haul situation. It has been more than 2-1/2 years since my husband's diagnosis, and almost 6 since the event that left him demented, and I think he has Alzheimer's as well so maybe as long as 10 since I saw the first symptom. Decide NOW to stay or to go. If you get a divorce you need to go.
Starling, Are you saying divorce her and leave. Who would take care of her? She is shadowing me, she can not drive, cook, pay her bills, take meds or turn on the TV and you want me to leave???? I do not think you are saying that. What are you saying? Frank I am with you on this one. It would be nice to have some help here with benefits.
Phranque, I am with you, it is not the ethical thing to do. In sickness and in health the marriage vows state. This is not a better or worse situation, it is a sickness and in health, divorce is not the answer, think about it, you are thinking about divorce to save assets, you are walking a tight line, Medicaid can consider this fraud and an attempt to hid assets.
I agree that unless you already have a 'fiancee' waiting in the wings it may be very difficult to find a new wife that would be willing to care for an ex wife sick or not under these circumstances. texas is a community state and half of the assets would go to your spouse of course. while you say she can still appear 'sound of mind' in front of a judge it may not be so easily accomplished. she cant cook turn on the TV et but you think she is capable of answering a judges questions put to her about divorce?? he will not just ask her yes or no questions more than likely but ask opinions of her. and i am sure you would have one atty to represent the both of you? while i dont sit in judgement of anyones decisions its quite a moral dilemma to start proceedings. starling is also correct once you are divorced a DPOA is no longer in effect. the next relative would be the appropriate designee for that. medicaide knows all the tricks of the trade so to speak to 'save assets' like jane says. you should speak to the elder care atty on how to proceed if you go forward. divvi
What I understand people to be saying is: if you want to divorce to have freedom to move on, do it early in the illness and do it knowing full well that any assets you have at the time jointly may very well still be used in deciding when eligible for Medicaid. The right attorney should be able to do all this to make it known there is no fraud. Also, if you want to continue caring for her/him, you will need to get a new DPOA - thus the need to get the divorce and all paperwork done early in the disease.
And it is highly likely that the person who then is assigned DPOA or Guardianship of an Incompetent person, will be one of Spouse's direct relatives, NOT you. (That's where Stella's comment 'to go' comes in moorsb).
I hate to say it, but it sounds like the alternatives are to abandon your wife or go find yourself someone who would be sympathetic to your physical needs without expecting you to marry her. I am sure many such women exist. Given the moral implications of each, I think I'd vote for the latter.
moorsb, My son wanted me to get a divorce as soon as DH was dx. This is a 2nd marriage for me and my son likes his SD but was thinking about my assets. I do not like this idea as it violates the marriage vows. My DH is a wonderful sweet person and if it had not been for him taking care of me for 28 years, I was a stay at home wife, some of these assets would not be as large as they are. Therefore I think 1/2 of everything is fair. I have property that was mine before marriage, from inheritance, that I understand would not be included in the split. The spend down will just be so costly. Trying to save assets seems so "selfish" sometimes. I am so glad God has allowed me to be the steward of "His money" and will accept His decission on this. Again, curiosity got the best of me. Sweet Pea
Sweet Pea, True your inheritance would not be included in a divorce split but it would have to be reported in a Medicaid Application, they count ALL property of both spouses whether inherited or not.
The problem comes in when you try to divorce a person who is not competent and when you divorce an Alzheimer patient you would really have to be very careful.
moorsb, I am saying that if you plan on staying to take care of your wife, and I think that is your plan, you CAN'T get a divorce. It wouldn't save your assets anyway. And it just might get you in trouble with the law.
Talk to an attorney who understands elder law in your state.
moorsb, I have posted to this topic earlier. I saw both an elder law attorney and a divorce attorney. If I divorced DH to save assets, we would need 2 attorneys - 1 to represent each of us, all joint assets would be split 50%, I could no longer have DPOA and the courts would appoint a guardian who would have control over all assets and care for DH. I was advised that Medicaid is VERY smart about this and if I cared for DH and lived with him that Medicaid would come after me for fraud AND the assets would not be protected. Now when I consulted an elder law attorney in another state her advice was to divorce him and live with him and Medicaid in that state would view it as a "business deal". I was surprised by her comment. I don't believe her. We can't have it both ways - either we stay and care for the spouse or we go in which case we will not be allowed to care for the spouse.
I do intend to stay with her to the end. This brings up another issue. My wife has told me it would be ok with her if I was to meet another woman when she is still alive and my wife is out of it mentally to go ahead and remarry. That sounds impossible given the above.
Looks like this is going to get very lonely towards the end.
moorsb, it gets very lonely long before the end. I'm no where near the end and loneliness is with me every day. Not just being lonely for a partner of some kind, but I'm even missing friends of the same sex. All caregivers get isolated. Your social life disappears long before it needs to, and I'm not just talking about a social life as a couple or with other couples. If you enjoy doing stuff with the guys, enjoy it NOW, because in a year or two you won't be going out with the guys, or with your sons, daughters or grandchildren.
I think this issue depends LOTS on the state you are in. We investigated divorce early on with a medicaid elder law atty (but not certified). We didn't have that many assets really and nothing that could have even gone into a trust at any point because this was a second marriage for us both and we started over basically 10 yr ago together. The Area Agency on Aging sometimes has access to or provide free legal service which is great, but my DH is earlier onset. Thankfully the Lincoln AAA did a seminar where the Medicaid atty talked so I got an idea of what to ask and what's what before going to our divorce atty who was recommended by our estate atty and the divorce atty we selected especially because of the firm's medicaid elder law partner (sorry lawyer just are confusing). We came up with the fact that we would come out basically equal IF there were not determination by Medicaid the divorce was to 'sidestep' their rules...not at all a certainty in this atty's opinion. Then there were intangibles, like some mention in their state...not being able to this or that. And we figured there might be 'unknowns' which we did find out afterward. So we ended up staying married. Medicaid atty said don't do a spend-down too soon (before go into a facility or it won't count). AND there's basically a financial 'freeze' at admittance to a facility even if you don't apply for Medicaid until some years later, so GET TOGETHER ALL YOUR FINANCIAL STUFF and start the process right away when DH goes into a facility.
My main question is (there is no answer), if they consider MY retirement IRA & 401K for HIS Medicaid and we spend down once he goes into a facility....WHAT in the sam hill am I supposed to do?????? I'm 59 now, don't have that great a retirement and the last I checked a year ago NE considered MY retirement as assets that must be spent down for DH to quality. Do I have to die with my boot on and PRAY someone will keep me on their payroll into my 70's????
I agree it's terribly complicated. In RI my retirement stuff, including IRA and pension and SS, are untouchable but are considered into how much I get to live on per month after he goes in. I know some states DO look at spousal IRAs but not at pensions - can you convert your 401K into an irrevocable pension for you?
Libby, worst case is when they place him, they also place me. But I've never heard of anyone actually needing that.
I'm in a situation where most of the money we had as a couple ended up in his name. He had 401(k) available and I did not in most of my jobs. And there isn't all that much anyway. We own our house free and clear. If he goes into a facility I won't have the cash funds to keep the house, and they will take half of what it is worth anyway.
It is what it is. I'll worry about it later because the rules on those irrevocable pensions have changed in Pennsylvania at least once since my husband got sick anyway.
The most important thing is to get the paperwork in order. Wills, living wills, POA, paperwork from Medicare and Insurance companies. Everything else has to wait.
In NJ Medicaid does look at both spouses assets - even those which were inherited and no "comingled" funds/assets were used/invested in those inherited properties and/or accounts. My understanding is that the non-medicaid spouse can remain in the home until they pass and have no more than $100,000 in other assets. Unfortunately my personal assets (IRAs, 401ks, etc) are significantly greater than DH's. Luckily he was able to get LTC insurance but I am not due to a long pre-exisiting illness. Knowing I was more likely to need medical care, health care services, etc. I saved to basically self insure so I would have the means to be cared for. Now all of the assets I have accumulated for my care will be used to care for my husband and I will be left with no means for my disability in the future. It just isn't right.
moorsb, I agree with briegull-just define "marriage" differently.
It is incorrect that Medicaid will take your 4-01K unless it is in an account where you could liquidate it. This is the same for your Pension. If the pension and 401_k are drawing an income stream that cannot be changed then it is yours and will not be taken. The only thing is that if the income you receive either from these accounts or your job is more than $21,912 for year 2009, then you would not be awarded any of your husbands income. I am very surprised that your Attorney did not tell you all this. You are allowed to keep the Home no matter what (They will not take your home as long as you are living and will NEVER take it if you get it into your name only. You are allowed Up to 109,560 in Non Countable assets if you at the time of assessment have at least $219,120 , thus the reason for having as much as possible when you first apply for help.
As for your home, you need to see if you can get it into your name only, the home will not be taken even after your husband dies if it is in your name and does not go into his estate. The State of New Hampshire does allow the Anunity that some states still allow for the community spouse. the State of New Hampshire also counts property outside of probate, even if joint tenant, life estate etc. if the deed was made after July 2005 thus making the need that the Home be in your name only before he is placed or dies.
I would contact a certified Elder Law Attorney when and IF you start to apply for Medicaid, I would ask about the spousal Annunity, I would ask how to set up the 401-K and pension so that the ASSETS are not counted. You have many options with the right Attorney who is versed in Medicaid. The problem is that it is hard to plan far ahead because the laws change, right now there are many in your favor but you are not ready for Medicaid.
It is true that you should not start a spend down until after the person has been in a facility for 30 days, Medicaid will not calculate the assets until that point. The more you have at that time the more you are likely to be able to salvage.
Find a GOOD medicaid certified Elder Law Attorney. Make sure you understand when he says assets vs income.
LFL, you said your husband has LTC insurance. I'm trying to understand why your assets will be used to care for him, in that case. Is it because the insurance doesn't pay enough to cover what he will have to pay for in-home care or for a nursing home? Or is there something else that I don't understand. I've been assuming that with our LTC insurance and DH's pension and SS that we would be ok.
My point on the house is that I will not be able to afford to live in it. And when you sell the house, they take half to pay back Medicaid. Can't put HIS IRA into an income stream for me. Might be able to put my tiny one into an income stream, but then again, maybe not. I'm not sure if the state and federal courts are still fighting over the issue.
If he goes into a nursing home, I'll ask and find out what is legal at that point in time. And I've listened to the wait until that point and THEN start doing stuff. I've listened and that is what I will do if and when the time comes.
briegull, Yes, if the home is placed in Starling's name alone before her husband is on Medicaid within the time line they give her to transfer or before he applies for Medicaid then the house is safe for Starling, they will not take half when he dies it will not be in his estate. The problem with transferring the home before he is placed is that you also have to look out for the husband's interest as Starling might die before her husband does. It is hard to plan far in advance until you are there. Starling has the right idea, find out at the time what the laws are BEFORE you sign to apply. You always have time to transfer the house at that time.
LFL, you do not say if you are under age 65, if you are you are allowed to place all your funds in a special qualified annunity for the disabled and Medicaid will not touch it. If you qualify for this you need to check into this right away.
Jane--I have never seen this issue addressed but wonder what your take is. The younger one is, the more likely that the bulk of their assets is in retirement accounts, which makes it much harder to do a spend down for Medicaid. You get hit with a big tax bill, and it's hard to tell whether that or paying for long term care will be the lesser of the evils. I'm wondering whether in the long term, fewer and fewer people will qualify for Medicaid because of this issue.
Living in Maryland, I'm under the impression that it's only my assets that would be considered in determining Medicaid eligibility for my husband, not my income. Of course, for him, it would be both. Is that correct? I saw an Elder Law attorney, the only advice she gave at this time regarding the spend down is to pull money from my husband's IRA if I need funds.
marilyninMD, This is a case by case situation, when you say Young, how young are you meaning? already retired but yet diagnosed EOAD, or even younger and still working??
I feel that if only people realized what we do they would start drawing down those retirement accounts as soon as they can, does not mean they have to spend them, just draw them down and get the tax paid a little bit at a time. This saves a much bigger tax bite if you are required to liquidate them when applying for Medicaid. The 401_k accounts if they can be accessed would be required to be liquidated. So it would cause a big tax bite anyway. I would advocate getting it out as you can even though you do not need it, pay the tax, and get it into another savings vehicle until or IF such time comes for a spend down. these are things people can do in order to get ready and not have it happen all at once.
My husband had it set up to where we would draw his out, it has taken almost 10 years and now that money can be used for either of us if need be. The thing to do is start early.
Yes, they would only count your assets and not your income. Maryland is one of the States that still allow the Spousal Annunity, I would get some of the retirement money out each year, get the tax paid a little at a time, and then if and when the time comes see an Elder law attorney and ask about the Spousal Annunity. It is hard for an Attorney to help with a spend down until you are ready to do just that.
What a lot of people do not realize is that the more you have the more you will be able to save. Medicaid does not even do an evaluation of the funds until the person has been in a facility for 30 days. This could even happen years before you actually apply and they will go back to the first time you or your loved ones were in a facility for 30 days. that will be the point that they calculate what you can save or spend down. No matter how much you accumulate after the 30 days it is that point that they count. Am I making sense??
I am editing this to explain better. When I say they go back years to the first time a person is in a facility for 30 days and that is the point they count, I am meaning this: Say 2 years ago your loved one was in a facility for 30 days and your total assets at that time were $100,000 and later you kept saving until your assets were $220,000 Well instead of being allowed the $109,000 resource for the community spouse they would only allow $50,000, but then if you had $220,000 or more the first time they were in a facility for 30 days you would be allowed the $109,000. (clear as mud I know) They still count all assets no matter what it is just that they figure the resource amount allowed by the 30 day rule.
Jane, I think I understand what you said above--here are some more questions:
My husband has great LTC insurance, but some of the facilities are so expensive that even his insurance plus his ss benefit would not cover the entire bill. Have you ever heard of anyone using the combo of insurance/ss/Medicaid? I need an itemized bill to submit to the insurance company to get them to reimburse under the policy, but have heard that if Medicaid is involved, the family gets no bill (makes sense).
Under the Spousal Annuity, does the State have to be the beneficiary? If so, do they recover the funds Medicaid has paid out when the spouse dies?
Another issue that comes up in preparation for a spend down is your tax bracket. Our accountant has told me how much I could withdraw from retirement accounts before bumping us into a higher bracket, which I obviously don't want to do.
Most of our funds are in annuties, that only allow you to deduct 5 percent a year, in order to maintain the protection from the stock market. We are already doing that, except for my IRA. Based on what you said above, I think it would be a good idea to start on my IRA as well.
marilynMD, Yes the State does have to be named beneficiary of an annuity, but when you set up a spousal medicaid allowed annuity it has to be set by Medicaid life tables and the principal must be paid out within your expected life time, therefore there would be very little if any left when you die, therefore nothing for Medicaid to take. This means that you would not want to take a certain year plus life you would want to set up the annuity to pay out as soon as you could. Most life insurance companies will not allow an annuity that pays out in less than 10 years, that is why sometimes a spouse becomes to old under Medicaid life table to qualify. Keep this in mind. Never buy an annuity without first checking with an Elder Law Attorney if you anticipate having to apply for Medicaid. This goes for and annuity within an IRA etc.
marilynMD, it sounds to me that the annuities you already have are what are called a Variable annuity, these if not revocable and producing an income stream would have to be cashed out in full if you applied for Medicaid unless they contained less than the resource allowed to you at the time of application. Be careful with annuities without talking to a Medicaid certified attorney if you at all have a chance of having to apply for help. If the ones you have are what they call variable I would check that 7 year rule and get out when you can. A variable is never a good choice. That is my opinion. Look up variable annuities and you will see what I am talking about. I know for a fact as my husband and I got caught with this mess over 15 years ago, it took 7 years before we could get out. I knew within 6 months I had purchased the wrong thing. Brokers will push this type annuity because of the large sales commission up front. to to google and type in whats wrong with variable annuities and read about them.
I found an eldercare lawyer on the site where the certified ones are listed and went to him. He charged for the first visit. Also, he didn't know that my 59-year old sister was not eligible for Medicaid. He had to look that up and call me with the information. He charged for the time he spent looking it up and for the time on the phone. I then called the local Alz Organization office. They mailed me a list of lawyers, but they got the list from the phone book. I asked at our support group, but no one there knew of any good Eldercare lawyers. How have you found find good ones?
Does any know how Medicaid would look at income from carring paper on a mortgage? We get about $1200 per month on payments I sold a 2nd home and owner financed it.
moorsb, When you say how would they look at the income, if the home was in both names yours and your wife's then the income would be looked at as half your and half hers. The contract you signed when self financing would be looked at to see if it is legal, and if you are in fact getting the true value of the property, they then in turn would turn to the County Attorney to have he or she go over the contract, Only a court can set aside a deed to real estate.
Janet, You would want an elder law specialist certified in Medicaid that is licensed to practice in your State. What reason was your 59 year old sister inquiring about Medicaid? Is she disabled? if so, she would qualify if she meets the asset test.