Seattle—
In a recent edition of their syndicated advice column "Next Steps,"
Jan Warner and Jan Collins respond to a reader who finds herself in a long-term
care crisis with an incapacitated husband and limited options for financing his
care.
As explained in the column's Q and A below, the reader's attorney first advised
her to transfer all of her husband's assets into her name to qualify her
husband for Medicaid. Without a power
of attorney from her husband, however, she could not make these transfers. The attorney then advised the reader to
become her husband's legal guardian so she could transfer assets out of his
estate via the guardianship. While a
court did appoint her as guardian, it refused to allow the asset
transfers. It is at this point the
reader sought the advice of columnists Warner and Collins.
In explaining Medicaid eligibility to the reader, Warner and Collins are
generally correct. In fact, the reader
may be successful if she appeals the court's refusal to allow asset transfers
via the guardianship. It may also be
true that Medicaid is the most sensible option for someone in this reader's
particular circumstances. Without any
additional information about the reader's family situation (e.g., the ability
and/or willingness of children or siblings to help pay for care), her options to avoid Medicaid for her husband
appear limited.
What is troubling, however, is the "Taking the NextStep" advice at
the end of the column where Warner and Collins tell readers how to avoid
finding themselves in such a crisis:
*Plan ahead with savings or investments?
*Purchase long-term care insurance?
*Any advice at all on how to avoid welfare dependency?
Nope.
The column's only advice is to make sure your spouse signs a power of attorney
with gifting powers so that Medicaid planning can be done quickly and easily.
We're not surprised by the advice, considering Jan Warner is an attorney who
promotes and sells Medicaid planning services through several different venues,
including seminars, radio shows, and his law practice. Such advice, however, is
corrosive to helping Americans appreciate the risk of expensive long-term care
and the need to plan ahead to secure top-quality care at the appropriate level.
The advice promotes further the public's notion that long-term care isn't the
terrible risk others suggest, especially if you've prepared yourself for quick
and easy Medicaid planning should the need arise.
Jan Warner and Jan Collins: Let's see a
responsible column on Medicaid which includes a discussion of the downsides of
Medicaid planning and the limitations of publicly-financed care. Anything less,
such as the "NextStep" advice at the end of this column, is a
disservice to readers who are relying on you to guide them though this most
difficult stage of life.
Here is the column's Q and A exchange:
"Q: My husband, age 67, suffered a
stroke three months ago that resulted in permanent brain damage and paralysis
on the left side. He is being tube fed
and can't communicate at all. I am 57
and have taken a leave of absence to help him.
"He was working when he became ill, but his only income now is Social
Security. Our income has been reduced by more than one-half since the stroke. During our 30-year marriage, we put our
money together to raise our family and support ourselves. Our assets include our home (mortgaged) and
about $100,000 including my small IRA.
He has Medicare and a Medicare Supplement policy, and I have health insurance
through my employer.
"I followed the doctors' advice and placed him in a nursing home. Because we do not have enough money to pay
his care and to take care of me, I decided to file a Medicaid application, but
I was told that we have too much money.
I went to a lawyer, who told me that I should transfer all of the assets
into my name, but my husband never signed a power of attorney. The only alternative, he said, was for me to
become his guardian and seek permission to transfer the assets.
"The judge appointed me as guardian, and appointed my husband a lawyer,
who told the judge that because I was a fiduciary for my husband, I should not
be allowed to make any transfers to myself, because if I died, my children --
not my husband -- would benefit. The
judge ruled that I could not transfer assets to myself, but if I had to sell
the house, I could have part of the equity.
"I can't afford to continue living in the house, yet I have nowhere else
to go. My lawyer says there is nothing
else to do. I have spent nearly
$7,500. Is there anything I can do to
protect my husband and myself?
"A: Ask the judge to reconsider,
or appeal. Both federal and state
Medicaid laws allow interspousal
transfers. And as your husband's guardian, to not allow you to make the
transfers, which your husband could have made if he had the capacity,
discriminates against him as an incapacitated person under the equal protection
clause of the Constitution.
"Taking the NextStep: This
reader's dilemma could have been solved had her husband signed a durable power
of attorney with spousal gifting provisions."
Source: Next Step: Husband's Stroke Hurts Wife, Modesto Bee On-line, January
15, 2001 at www.modbee.com/living/story/0,1155,230297,00.html
_____________
*** Forward freely; encourage subscribers! ***
The Center for Long-Term Care Financing is a 501(c)(3) charitable non-profit
organization dedicated to ensuring quality long-term care for all Americans. Ask how you can support the Center
today! Visit our website at http://www.centerltc.org/needhelp.htm
or contact Amy Marohn at amy@centerltc.org
for details.
This e-mail is the latest installment of "LTC Bullets" - the Center's
periodic online news service covering the latest information and trends in
long-term care financing. We welcome
responses to the material presented.
***Unsubscribe by simply using your reply button to send a request. Please put your e-mail address and name in
the body of your message. Your e-mail
address will be deleted from the Center's mailing list before our next
mailing. We apologize for any
inconvenience. We do not intend our
"LTC Bullets" to reach anyone not interested in receiving them.***
All past issues of LTC Bullets may be read on the Center's web site at www.centerltc.org
Please direct any questions or requests to info@centerltc.org
Thank you for your time and interest.
Center for Long-Term Care Financing
11418 NE 19th Street
Bellevue, WA 98004
Ph: 425-467-6840
Fax: 425-467-6829
E-mail: info@centerltc.org
Web: www.centerltc.org