LTC Bullet:  Stumbling on the Next Step

 

Friday  January 19, 2001

 

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
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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.


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