Question:  Mom needs to go into a nursing home and I’m helping her get qualified for Medicaid to cover the costs. Should Mom transfer the home out of her name into her children’s names?

Answer:  No! At least, not without first consulting an elder law attorney who can examine your mother’s situation and advise her of the consequences. One of the more common scenarios we come across is a person re-titling property (gifting) for the purpose of qualifying for Medicaid benefits without realizing that Medicaid will look back for five years at the person’s gifting history and disqualify the person from benefits in the amount gifted during that time frame. Folks should seek an elder law attorney who can navigate the law and the extremely complex Medicaid rules before attempting to re-title property.

Question:  I’ve heard that Medicaid will pay for nursing home care. What about assisted living?

Answer: It is a common misconception that Medicaid is the government program that covers both nursing home care AND assisted living. However, in North Carolina, this is not the case. A state program called Special Assistance covers the cost of assisted living. Although the process of qualifying for Special Assistance is similar to qualifying for Medicaid, the requirements are different.

Question:  My husband is in a nursing home on Medicaid and I still live at home. Is the government going to take my house?

Answer:  Not during your lifetime, and, possibly, not after you and your husband have both passed away. Every situation is different. With the right kind of plan in place, a couple can generally preserve valuable assets, including the home, for themselves and for their children.

Question:  I don’t own a home and have few assets. Why do I need a will?

Answer: Everyone needs a will, even if your only assets are your household goods, an old car, the clothes on you back, and a few dollars in the bank. In fact, if you die without a will, that is, intestate, your surviving friends and family will learn that the state of North Carolina has provided a will for you – the intestacy statute – which says exactly how your estate is to be distributed. In order to ensure that YOU, and not the state, decides what to do with your assets, you need a will. Additionally, you can appoint an executor you trust to make sure your wishes are carried out. Finally, if you have minor children, you can appoint a guardian for them in your will. Many married couples with young children simply assume that the surviving spouse will take care of the children; however, it is possible, if not common, that both parents could be killed simultaneously in an accident. Naming guardians gives your surviving family and other loved ones peace of mind in knowing what your wishes are and keeps court involvement limited.

Question:  What is the use of a power of attorney and what makes it a “durable” power of attorney?

Answer:  Of all the standard estate planning documents, a durable power of attorney might be the most important. Perhaps, even more important than having a will.  When a person becomes legally incapacitated for any reason, whether the cause was a serious accident resulting in brain damage, or perhaps dementia brought on by a stroke, that person is no longer able to manage his or her own affairs. Folks in such a situation might give money away to a con artist calling on the telephone or be subject to abuse and manipulation by a caregiver. If the person did NOT previously execute a durable power of attorney, a family member or loved one will have to apply to the clerk of court for guardianship to prevent further harm. The court has full discretion to appoint a guardian and the appointed guardian will be subjected to the scrutiny of the court for decisions made and monies spent on behalf of the incompetent person. Fortunately, a durable power of attorney gets around the difficulties of guardianship. In a durable power of attorney, you name a person or persons you trust to take care of matters for you if and when you become incapacitated.  Often, that amounts to simple activities like paying utility bills from your checking account and managing your assets, but could include more complicated transactions, such as re-titling your home, if it was necessary to get you qualified for some form of government benefits to cover long-term care.