My mother is 81. She lives alone in a house that she has finished paying for. I’m her daughter, age 58. I live on the other side of the country. My brother lives an 8-hour drive from Mom. In March 2018, Mom was diagnosed with mild dementia, vascular or mixed. In December 2018, I arranged for Mom to sign a new durable POA and advance medical, naming my brother and I as equal co-agents (with the full knowledge and agreement of my brother). My question: How should I approach an elder law attorney with my own needs and priorities for the future? Needs and priorities such as: I will be the one to move in with Mom for a period of time as her dementia gets worse, and I will be the one to make all the arrangements for any type of care. I think it’s reasonable for me to be compensated for that by a gift and/or lump sum family caregiver contract. It’s only fair that my brother should have a gift as well. My brother and I want the flexibility to be able to sell her house in the future if she is permanently in a nursing home. I would like the flexibility to move Mom to another state when her dementia becomes severe enough so she can’t object. How can I make my needs and priorities known to an elder law attorney without the attorney assuming I’m acting unethically? Is it considered “normal” for me to give the attorney a general plan for what I want in the coming years? Perhaps I should give the attorney more detailed info on Mom’s diagnoses (dementia, depression, anxiety). But at the same time, I don’t want the elder law attorney to doubt Mom’s ability to understand and sign legal documents. Meanwhile, Mom doesn’t want to discuss her future care needs because it’s too upsetting. Mom can’t add and subtract anymore, and she is confused about the difference between one-thousand and one-hundred-thousand. For Mom, a $4,000 charge for an attorney might as well be $4 million. I understand that legally, Mom is the client, but I am a big part of Mom’s future and I have needs too. The elder law attorney would never even have a conversation with Mom if I didn’t initiate it. How do families and elder law attorneys deal with this situation in real life?
"These are very good and difficult questions. A lot can depend on the elder law attorney with whom you work. Some are stricter than others about exclusively representing the elder parent. In his confirmation hearings to become a justice of the Supreme Court, Louis Brandeis suggested that in certain instances he had been the "lawyer for the situation." In short, a lawyer can represent multiple parties with differing interests as long as there is full disclosure and informed consent by all parties.
You should be able to work with an elder law attorney to work out a plan as long as both you and your brother are fully involved. The lawyer would have to meet independently with your mother to make sure that she is comfortable with the situation, even if she can no longer understand the finer points. But there may be attorneys who are less flexible. We would recommend interviewing a few who have offices near where your mother lives and choose the one you feel will work best with your family."
"I would like the flexibility to move Mom to another state when her dementia becomes severe enough so she can’t object. How can I make my needs and priorities known to an elder law attorney without the attorney assuming I’m acting unethically?"
BeeKee. The thing is. If you *know* even at this early stage that your needs and priorities are irreconcilable with what you know your mother's wishes and priorities are, and you go right ahead on the basis that once she's fully demented she won't be able to object - that IS unethical. Incredibly unethical. It's the opposite of how a DPOA is required to act.
Say your mother has consistently made it clear that she would rather die alone than be moved away from her home town - for example, I'm not saying this is what's going on - then the ethical DPOA would meet her wishes by sourcing long term care in or as close as possible to her home town, and take the inconvenience and other drawbacks on the chin. You think it's better to disregard her wishes so that you can see her frequently where you live. But *she* never did think that. She's more bothered about moving than about not seeing you.
You can promise her that you won't move her unless you have to; and then you will have to have that difficult conversation with her. But you can't promise her that you won't move her period, then turn round and do exactly that just because she's too mentally frail to understand what's happening. Or rather you can - but ethical? No, not remotely.
At the very least, you owe it to your mother to be honest about how you would use the trust she is placing in you when she gives you DPOA. And by the way, if she can't fully understand what authority the DPOA would give you and your brother when it comes into force, she can't create a valid DPOA.
Trust is the issue. When your mother gives you DPOA, she is trusting you to act for her, in her best interests, as she would have done herself were she still able to. Putting safety above personal preferences is one thing, sometimes that becomes necessary and there's no choice. But from the sound of it, you plan to put your own "needs and priorities" first. That's a no. Do this right or don't do it at all.
Having POA does not mean that you can determine where a person can live; you would need guardianship to do that.
If your mother doesn't want to discuss her future needs, I can't see that you are going to get anywhere with setting up a caregiving contract with her.
The big plus of having a lawyer do it is that if it's contested, then you already have someone to call to deal with it. Since they did it, they also are motivated to defend it since their reputation is on the line. But drawing it up yourself doesn't mean you can't hire a lawyer to defend it.
What exactly are you saying?
It sounds like you think you can pay an attorney to do whatever you want, not so, they are bound by law and ethics. If you ask them to fudge the law to help you, you will be without an attorney.
The amount you pay has no correlation to the ability of your attorney, some actually have reasonable prices and are top of the line attorneys.
The 1st elder care lawer they spoke to put their house in a life estate. My sister and I are what is called the remainderman. He never explained what that means and how it really protects the house. We switched lawyers and I found out that inorder to protect the home from Medicaid they need to sell the home. My sister and I would get 1/2 of the money and my parents would get the other half. We would have to buy a home and a caregiver contract would be made up for my sister and I to take care of them in lieu of putting them in a nursing home. My parents would pay us to take care of them under the contract. We have not been able to do this a my mother can not comprehend this concept. And yes, I can read the writing on the wall, she is next to be diagnosed.
If I were you, I would definitely talk to a lawyer and lay out my concerns. It does not sound like you are acting unethically.
You do go on to say that you would be taking care of your mom in lieu of a nursing home and thus medicaid. So I guess the point of selling the house is to liquidate the assets, use said assets to pay your and your sister for the care of your parents. Since it's wages for care then it's not a gift and not subject to a medicaid lookback penalty. So if your parents eventually go on medicaid then at least some of the assets that were the house are protected. Does that sum it up?
Depending on your state, medicaid recovery can only take place on probated assets. The residence is exempt while they are alive from medicaid consideration. If the house is in a trust or a TOD then it will not go through probate and thus not be eligible for medicaid recovery. So the house would have been protected. Once again, this depends on the laws in your state.
I'm just curious why the 2nd attorney went down this route when what the 1st attorney setup is more common.
As usual, these are the late night ramblings of someone who has no idea what he is talking about.
My guess is you may have to get her doc at some point to issue a letter stating she can no longer care for herself. Most assisted living facilities will require this.
As to getting paid, you can’t use her money for yourself, only for her care and expenses. Some caregivers have contracts with their parents for caregiver pay but your mom my not be competent enough to do so.
I ultimately had to get court ordered guardianship/conservator over my parents to deal with some financial and real estate issues. I can request the court to allow me necessary expenses although I have nor done so yet. Otherwise I can’t spend one cent of their money on myself.
If Mom can't afford 4k for a lawyer, then how can she pay you? Yes, you will need a Caregivers contract. The need for Medicaid within the next five years is what you need to consider. They allow no large gifts. All Moms money has to go for her care or upkeep on the house while living in it. My POA allowed me to sell Moms house. Medicaid will allow Mom to keep her house but will not allow any of her money to pay for upkeep, utilities or taxes once she is in a NH. These expenses would fall on family if they choose to pay them. Medicaid does not guarantee reimbursement once the house sells. Which it must sell at Market Value. If Mom does need Medicaid, all bonds, stocks, shares, CDs, and some types of insurance policies have to be cashed in for her care before Medicaid picks up the bill. Her SS and any pension will be used to offset her care.
Make a list of your concerns or questions. Let the lawyer take the lead. At 58 your future is important. You will be collecting SS within the next 4 to 9 years. (I think your age group in 67 for full SS) Not working is going to make some impact on what you get.