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"Shielding the Assets" when you think parent will remain in your home in your care
Old 12-21-2009, 08:21 PM   #1
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"Shielding the Assets" when you think parent will remain in your home in your care

My 80 year old mother had a stroke early in 2009 and spent 2 1/2 months total in rehab, mostly in a skilled nursing facility (nursing home). She hated, hated, hated the institutionalization. About month 1 1/2 she became a "problem patient" - trying to escape, acting demented, refusing to eat, flushing food down toilet, agitated, yelling, etc. Nursing home "discharged her to hospital" one particularly agitated eve - i.e. kicked her out. The next step was either within nursing home in unit for those with psych probelms; or .... home.

That would be my home, because the stroke had left her unable to read/write/fix a meal/dial a phone or all those things that let one live independently. I went for the latter, because for many reasons it seemed the right thing to do. Mom immediately became much better, began eating (after not doing so for 22 days straight before discharge) and got back some quality of life. Granted, she had become incompetent (I became POA) but it was better than the crazed demented acting lady that was kicked out of the nursing home.

Fast forward 9 months - between me and my one sibling, taking care of mom has been almost doable. She stayed with me and my spouse/kids for the spring, then in summer my brother and I switched off staying with her in her own home. My mom got a lot of her former life back - swimming every day, attending neighborhood parties, doing jigsaw puzzles with the grandchildren - though huge differences remain.

For my brother and I, it came down to we both cut way back on p/t work we had formerly enjoyed doing (we had both retired in our early fifties from f/t work). And, in general we went through/go through quite a bit of "life is stressful and I can't do what I wanna when I wanna anymore."

In the fall, when mom was back with me, we agreed I should do a 24 x 20 addition on my house (b/r, handicap bath, walk in closet; similar set up in full basement below for potential live in caregiver if it comes to that.) We have 3 kids, a dog, and a 3 b/r home, so things had been pretty cramped (mom sleeping in what had been the downstairs family/computer room).

To summarize, we've - mainly me - been caring for mom f/t for almost a year. We have spent next to nothing of her assets except for legal and financial advice early on, and now, for the major (not completed yet) expense of addition construction. We have both given up p/t time work and paid ourselves nothing for caregiving or for food. If there's a co-pay at the drs or a prescription, I'll use her money. Otherwise, no. We have attempted a few times having a "nice woman" coming in to stay with her a few hours - each one has been met with "I can't stand that lady, don't do that again" reaction. So very little has been expended there either. (I'm thinking the next try should be with a "nice man", preferably a good looking and fun one.)

I also arranged the rental of her house for the winter so the utilities are being paid by the renter and a little extra is coming into her account. Her bank balance is getting bigger each month, and her asset portfolio has gone way up thanks to the rebound in the market. I should add that the local nursing home to which she would have probably gone, had I made that choice, is $340 per day - about $124K year.

My mom's assets are about 3/4 in a trust her late husband set up for her, and about 1/4 in 2 equal joint accts (1 with my brother, 1 with me). The trust ultimate beneficiaries are my mom's husbands grown children, not me or my brother. The trust is very broad in my mother's favor that the trustees (herself - which is now me as POA, plus an old friend) can expend whatever is deemed necessary for mom's well being, up to and including liquication of assets including home. The only restriction, if you could call it that, is that "other assets available" (which would be the joint accounts) must be exhausted before the house is liquidated.

In an abundance of caution, I early on hired an elder care atty to read the trust, and make sure it was legit to spend money on an addition that could be seen as being in my self interest. We also discussed setting up trusts to "shield the assets" should my mom go into a nursing home again.

Atty said addition expenditure was, "of course", legit per the trust. She also recommended after that was done we should approach ultimate beneficiaries re re-writing trust into 3 new trusts - one each for the joint accounts, one re-tool of the existing trust - to "protect assets" from Medicaid seizure/5 yr lookback/blah blah blah.

I am thinking there is nothing positive the nursing home did for my mom that I can't replicate at home now, with the new addition; though if she became further damaged I might need to bring in some help; and she sure as hell will be less crazed/depressed in my home than in the nursing home.

I'm thinking, worst or maybe best case scenario, my mom lives another dozen years in the addition at my house, maybe with substantial $ needed for outside help coming or maybe even living in. I don't see mom ever going into a nursing home again unless my brother and I both drop dead. Therefore I am not convinced this 3 trust idea is something we have to move on instantly, as what are we "shielding" from?

Right now I have great flexibility with the trust monies - for instance, if we need to replace her old car with a handicap van down the road - I just write the check on the trust account. I figure the trust, followed by the joint account monies, can maintain her at home at least ten years, even if we have to bring in help 8+ hrs. a day. I should add she has LTC insurance that will pay 3 yrs worth of benefits, including in home care.

Now one of the 3 ultimate beneficiaries included in his "holiday note" - basically, "hi how are you must be tough caring for your mom and what about the money?" a request to meet and discuss re-doing the trust. Of course, I will talk with the attorney before responding - but thought I would get some advice here too.

Given the situation, is there a compelling upside to me going forward re-doing trust to "shield assets?" Have I been fiduciararily (is that a word?) irresponsible not doing so sooner? It's been almost a year now since she had the stroke, and I've known (when I had time to think about it as I reeled catching the pieces and tearing down my life making room for her) for about 9 months she'd almost certainly need life-long 24/7 care.

thanks for reading and for whatever insight,
happy holidays to all
"made it to FIRE, got smeared in the sandwich"
hey, it's all good
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Old 12-21-2009, 08:48 PM   #2
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I really don't understand what would be done different with the existing trust to protect assets. Medicaid planning is an area where you really, really need to have someone who knows what they are doing and maybe the attorney has something in mind, but I would want a clear explanation of what she can accomplish and how all of you will be served by the changes. Especially given that she has LTC insurance. Not many people need more than three years of LTC, from what I have read.
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Old 12-22-2009, 12:00 AM   #3
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Quote:
Originally Posted by Green Jeans View Post

Now one of the 3 ultimate beneficiaries included in his "holiday note" - basically, "hi how are you must be tough caring for your mom and what about the money?" a request to meet and discuss re-doing the trust. Of course, I will talk with the attorney before responding - but thought I would get some advice here too.

Re-doing the trust?

*cough-hack*

I'm not a lawyer, but I thought the whole POINT of setting up a trust was that it was carved in stone until everything it was set up to do was done. (care for your mother, in this case.)

Let us know what your elder-law attorney says - I'm curious!

ta,
mew
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Old 12-22-2009, 12:04 AM   #4
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You might want to talk to a few other attorneys. We had one guy who wanted to redo our existing family trust for thousands of dollars when another attorney just made a few changes to the trust we had to bring it up to date. It was worth taking the time to get at least a couple of different opinions, and I'm glad in the end we didn't just accept what the first attorney told us. He was pretty vague about exactly what all needed such extensive updating so I got the feeling he was just trying to create some billable hours for himself.
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Just what you said --
Old 01-30-2010, 07:47 PM   #5
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Just what you said --

Quote:
Originally Posted by mews View Post
Re-doing the trust?

*cough-hack*

I'm not a lawyer, but I thought the whole POINT of setting up a trust was that it was carved in stone until everything it was set up to do was done. (care for your mother, in this case.)

Let us know what your elder-law attorney says - I'm curious!

ta,
mew
--------------
Well, my third stab at Elder Care Atty. advice proved the best. I sent him copies of the trust, my expenditures, related letters etc. After he had a chance to read it I went to his office for an hour meeting. Result -- he opined that the trust was set up and well written to take care of mom and it would not be a good idea to break and/or rewrite it.

Which goes to show you that Elder Care Atty advice can differ greatly. This guy charged me all of $250 for that; and agreed I could tell any curious heirs to call him if need be. Compare and contrast to the $8,000 the prior Elder Care Atty. quoted for making and breaking trusts. Unfortunately, after I politely called and informed that atty. I'd decided to go with another Atty. I found out none of the $4,000 I'd paid earlier was refundable. ("We did quite a lot of work.")

That's okay, I got an education and I am feeling fortunate to have averted dumping another $4,000 to put me on a path that may have been much less favorable to my mom.
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Old 01-30-2010, 08:33 PM   #6
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All I can say is you are a saint ! My Sister and I are sharing care of my Mom who is 93 and mentally sane & physically well and except for arthritis pretty healthy and it's exhausting especially since we are in our 60's . I can not imagine what you are going through .
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Old 01-30-2010, 09:15 PM   #7
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