Answers to YOUR Elder Law Questions and Concerns

In this episode, Lisa Shoalmire and John Ross take the time to answer some of your most pressing questions about asset protection options, power of attorney, deeds, inheritance and so much more!

Episode Transcript
Lisa
Hello, everyone. Welcome to another edition of Aging Insight. I'm Lisa Shoalmire, and I'm here with my partner John Ross, and we are here on this television program to hopefully provide you with information that you find useful as you look down the road toward caring for an aging family member or even looking at your own aging journey. We hope that Aging Insight can be a place where you can get information about that. The bottom line is we don't wanna go broke in our retirement years and through our aging times. We don't wanna be a burden on our family and friends. And we wanna protect the assets that we've worked hard to save and gather up. And we wanna protect that legacy so we can pass it on to the next generation. That's what Aging Insight is about, and we've gotten some great feedback from audience members out there who seem to appreciate the program, but always seem to have a question.
John
Yeah, whether people are calling into the radio show or whether they're sending us emails through the internet, or even the other day I was at Starbucks and somebody just came by the table to say, "Hey John, I just really enjoy the show and I appreciate it." So we know you're out there, and we know that you've got questions. And the reason we know that is because you're asking us those questions. And I could remember back in school they would always say, "Don't be afraid to ask a question because if you've got a question, there's probably 15 other students in the room that have that same question." Lisa and I kind of thought well, maybe the best way to address some of these questions is to address them right here on the show and take some of your questions, those viewers out there who are watching the show and you have questions that you want answered. Well, we figured we would just take a day to answer viewer questions.
Lisa
Okay. Well, I think, John, I think I'll go first and then see if I can't stump you. A viewer question that's come in a couple of times is, "When should I look at getting assets out of my name?" And of course, this question seems to go toward thinking about long-term care liabilities down the road. I've heard about things about putting your assets in your kids' names. And so this question is, "When should get my assets out of my name?"
John
And I'll tell you, I get this question all the time. People will always come in, they'll say, "Well John, at what age should I get everything out of my name?" Or, "How long do I have to wait once I get everything out of my name?" Well, to answer the question of, "When should I get stuff out of my name?" How about, "never." Whoa, I bet that wasn't the answer you were expecting. I bet you were expecting me to throw out some age or give you some good lawyer answer about, "Well, it depends on your personal circumstance." Well, you know what? Giving your assets away is not protecting them. People seem to have the idea that they need to get assets out of their name, and the reason they have this is because there is a rule under Medicaid. So if you're the kind of person who would need Medicaid to pay for nursing home care, there is a rule under Medicaid that says, "If you have given away any of your assets within five years prior to applying for that benefit, Medicaid won't pay for you." Well, this has somehow gotten into people's heads that they need to give assets out of their name so that they will be protected later on down the road.
John
Well, the problem with that is if you take your assets and you put them in somebody else's name, you've subjected your assets to their problems. I don't care whether you have the best kids in the whole world if you're 100% confident that they will hold your assets for your benefit. But you know what? Kids can still die. Accidents happen. And if that child dies and they own your assets, your assets are now gonna go to somebody else. That person may not be as willing to hold on to 'em as your child was. What if they get into a car wreck and get sued? What if they have a financial problem and have to file bankruptcy? All of these issues can affect your assets and can ultimately put you in jeopardy because your assets are important to you. Now, does that mean you shouldn't protect them? Oh, no of course. You should always try to do what you need to, to protect your assets. And there are ways to do it, but giving them away is not it. So, the short answer to the question, Lisa, of, "When do I get rid of all my assets or get them all out of my name?" It's "never." You should protect them, but giving them away is not the answer.
Lisa
Well John, and I think what this questioner was getting at was they're thinking about protecting their assets, but they've already jumped to the conclusion of how those assets should be protected, which is they think they should be giving them away. So, with your answer, it's a good thought process to be thinking about protecting your assets, but there are tools that "the how" is where you should get some good advice.
John
That's right, because if you've never heard of terms like asset protection trust, special needs trust, ladybird deed, joint tenant with right of survivorship deed, all of these are asset protection tools that you can use to protect your own assets without having to give them away. And if you don't know what those type of terms are, then you need to learn about them, you need to learn about the ways to protect your assets and understand that getting them out of your name is not one of 'em. It's not on the list. Alright? Lisa, we're gonna have to take a break, but when we come back I'm gonna be asking you the question that we get all the time which is, "Okay, I need to appoint somebody as my power of attorney, and does that person need to be my oldest child?" And so when we come back, Lisa's gonna answer the question of, "Do I have to appoint my oldest child as the power of attorney?" So stick with us, we'll be right back.
John
Welcome back to Aging Insight, everybody. I'm your host, John Ross, here with Lisa Shoalmire and today we're answering viewer questions. The questions that you've sent in or that you've caught us on the street and asked, or that you've called in on the radio show and asked, we wanted to answer some of the viewer questions on TV. And right before the break, Lisa, I was asking you one of the questions that we got in which is, "Do I have to appoint my oldest child as my agent on that power of attorney?" So they need a power of attorney, they're trying to figure out who to appoint, and they're wondering if they have to appoint that oldest child.
Lisa
Yeah, that's right. So, a power of attorney, we've talked about that document on the show, is a way for you to nominate and select someone that can assist you with your business, or really take over your business matters if you are incapacitated and can't do them. And so it's an important consideration on who that agent, who that person that's gonna carry on with your business while you're ill or incapacitated is going to be. And the first thought a person typically has on appointing an agent for a power of attorney is, of course, a family member. A spouse makes it easy, but if you're a widow or a single person, then you often are starting to think about if your children should be appointed as your agent. And I guess a idea that persists is that you have to appoint your children in age order to be an agent on your power of attorney.
Lisa
I have many particularly older ladies who, if they have the oldest child is a son, they're always thinking that they have to appoint that oldest son on that power of attorney. And I don't know if that's an old-school thought process or they're just of a generation that has come to believe that, but the bottom line is the agent who you select on your power of attorney is whomever you chose. It is not required to be your oldest child. It's not even required to be a child of yours. If your best friend or a lady you've been going to Sunday school with for 30 years is the person that you trust with your business should you not be able to do it for yourself, then that is who you should appoint. There is no legal requirement to appoint a child as an agent under a power of attorney, or if you decide to do so to appoint a child, you can appoint the baby as the agent because maybe that child you feel like is the most trustworthy and the one who takes care of their business, and they'll look after you and take care of your business. So, use your judgment on the substance of the person who you might think should be your agent, and not just based on a traditional view of how things should be done.
John
Right. And you know Lisa, one of the things that I'll have somebody in the office and they'll say, "Well John, I'm thinking about appointing this person but... " And then there's something after that. "But they're not really good with money." Or, "But they're kinda pushy." Or, "But they don't get along with any of the other family members."
Lisa
My favorite I've heard twice this week is, "But they're a procrastinator."
John
Yeah, "But they're procrastinator."
Lisa
"They don't take care of business in the right timeframe."
John
When you're talking about somebody who's gonna be handling very personal decisions, your business decisions, your medical decisions, there shouldn't be a "but." There shouldn't be a, "Well, I want this person to do it but... " It should be the person that you trust implicitly. And if you've got questions about whether or not that person is up to the job, whether they'll do it the way you want it done, frankly, you're probably picking the wrong person and you need to expand your thought process a little bit. You may not have anybody, in which case there are other alternatives. There are banks that can do that sort of work for you and different other alternatives. But yeah, it certainly doesn't have to be any one person.
Lisa
Well, I guess along with that question, really what we end up getting to is the senior is worried about hurting somebody's feelings. They're worried about hurting the feelings of that oldest child because often times that oldest child has been the boss of the other kids, and feels some sort of entitlement to be the one in charge if mom or dad gets sick and can't do it. But you don't even have to tell that child that you didn't select them. These are documents that you would share with your agent and could be coming out at the time that they're needed. Hurt feelings are not a reason to put your business and assets at risk, so you just gotta decide, stand up and do what you know is gonna be best for you in the long run.
John
And Lisa, one of the other questions that we had from a viewer that ties almost directly into this same question is the powers of attorney are for life, so the question is, "Do I have to give these kids an inheritance? Does it have to be equal? I've got three kids, do I have to leave all of them an equal share?"
Lisa
The bottom line is the law lets you leave your property to whomever or whatever you want to. There is no forced heir-ship in the state of Texas or the state of Arkansas. The children have no expectancy of any inheritance whatsoever. I've heard many times, "Well, mom gave a big gift or a loan to my older sister and she's never gonna pay that back, and I expect I should get more of mom's estate to make up for that." You know what? None of that is legal, none of that matters. You can do with your own property what you want to. It could mean you could leave it all to one child, you could leave it all to the animal shelter, you can cut a child out of an inheritance. Again, it's your property, it's your decision.
John
Yeah, and that of course even applies... In some cases that even applies to spouses where you just don't have to leave assets to certain people, unless of course, you live in Louisiana. So if you're in town visiting from the great state of Louisiana, just forget everything that Lisa just said because Louisiana, unlike every other state in the union, every state in the union you can leave assets to whoever you want and whatever shares you want. You can disinherit kids and things like that with no problem except for Louisiana. So for our Louisiana viewers out there...
Lisa
Call someone with a Louisiana law license. [laughter]
John
That's right, yeah. Call somebody with a Louisiana license. Well, Lisa, we're gonna take one more break, and when we come back we're gonna finish up answering our viewer questions. So we'll be right back stick around.
Lisa
Welcome back everyone to Aging Insight. I'm Lisa Shoalmire, and I am here with John Ross. And today we are just kind of doing a grab bag of questions that we have received from viewers and received from radio callers and other people that have caught us out in the community. And we've heard these questions several times, and we wanted to answer them on the air so that you could also be informed about these questions and answers. And John, one question that I get very frequently is we have a situation where a person is remarried, and maybe they had a long first marriage and they lost their spouse to illness or age, and now they've remarried. They found a companion, and they've remarried. And they've brought into that second marriage some assets, some retirement, some savings, maybe even real estate including their own homes. And so the question becomes, "If I'm remarried, are the assets that I brought into this new marriage, are those assets going to be held responsible for the health care or long-term care cost of my new spouse? These assets that I had before I ever met this person, while I was married to someone else, if I bring those assets into my new marriage, are those assets gonna be at risk for costs associated with medical care, long-term care of my new spouse?"
John
Well, and I'll tell you, Lisa, I'll give you the perfect example. So, we had a case, and we had a husband and a wife, and they'd been married for a few years but this was a second marriage. Each had a home prior to marriage. He had his house. She had her house. And when they got married, they just decided to move into one of the houses and they'd just rent out the other one, which is exactly what they did. Now, they didn't have a lot of cash resources, and between their Social Security and their rental income they had enough to live on. They were doing fine right up until the point where one of them had a health crisis. I believe in this case it was a stroke. And after that stroke, the person that had had the stroke needed nursing home care. And they didn't have the monthly income to be able to pay the cost. They didn't have enough cash assets to be able to pay for the $5,000 a month at that nursing home, so they started looking for Medicaid to help pay for that. Well, under Medicaid rules, you can have a house worth up to $535,000 and still qualify for Medicaid benefits.
John
Now, that's great. Except in this family, they had two houses. One was his and was hers. And clearly, one was his, and one was hers. And so the one spouse, the spouse that's not in the nursing home, she's saying, "Well look, his house is his house, but this is my house. My house shouldn't count towards his eligibility for Medicaid." Well, unfortunately, that's not the way the law sees it. When it comes to long-term care, the married couple's assets are all pooled together and counted towards that person's eligibility. It doesn't matter whether it's in his name, her name, both names. It doesn't matter whether you've got kids names added to those accounts or added to those things. If your name's on it, if the Medicaid applicant's name is on it, it belongs to them. Or if their spouse's name is on it, it belongs to them. As we in the South kind of say, "It's not his or hers, it's y'all's." And that's the way Medicaid looks at it.
John
And in a situation like a second marriage, this can be a really touchy subject. Because whether it's that second house or whether it's the retirement account, the IRA or the savings that that non-nursing home spouse brought into the marriage, they're worried that those assets are gonna be at risk. And Medicaid rules are very clear on this. If they're in both names, if they're in one name, if they're in either name, it's all counted together. And I've had folks they'll say, "Well, we have a prenup."
Lisa
Right. I was about to...
John
So doesn't that solve it, Lisa, if I have a prenup?
Lisa
Yeah, not whatsoever. Doesn't it touch it, doesn't change a thing about what John just said. A prenup is a document that deals with divorce and death, but what it does not deal with is disability and long-term care concerns.
John
That's right.
Lisa
And frankly under the law, there's no way we can make a provision in a prenuptial agreement that can deal with those issues.
John
Yeah, yeah. Those second marriages can be a little tricky. And Lisa I'll tell you, I lied a little bit on my story. We did have this husband and wife and they did come into this marriage, and each of them had their own property. But they were actually looking ahead. And several years ago they had come in and we had done some estate planning for them where his property would not count towards his eligibility for Medicaid, and her property would not count towards her eligibility for Medicaid. So when this time came and they did need that long-term care, it actually wasn't a problem. The reason it wasn't a problem was because they looked down the road and said, "Yes, this is a second marriage. Yes, this is gonna have some unique planning issues that need to be addressed well ahead of time."
Lisa
Well, and of course the problem is this particular couple did come in and think about planning ahead, but a lot of folks assume that if I acquired an asset or earned savings prior to this marriage, it won't count for any purposes in this marriage. And they assume that, and so they don't get good advice about how those assets might be deployed or depleted if there's a disability.
John
One of the things I'll hear all the time is they'll say, "Well, that was my family land." And, "I talked to a lawyer years ago and he said that if I die, that's gonna go to my kids." Well yeah, that's true. But like Lisa said, that's death. We're not talking about death. We're talking about incapacity. And those are two different things. You need to plan for both.
Lisa
And I think the confusion in this area comes from the idea of marital and non-marital property, and community property, and separate property, which has no bearing whatsoever when it comes to disability.
John
That's right, so learn the rules out there. And as you can see with these questions, they're simple questions but sometimes the answers may not be what you expect. And that's where getting good advice comes in. And of course, you can get good information by watching this show. But if you hadn't gotten enough here, you can catch us on the radio every Saturday at noon on 107.1 where you can call in and ask questions. You can read our magazine, "Aging Insight," and learn all about it. Find us on the web at aginginsight.com. And of course, if you see us out there in the community, come over and say hi. Tell us you enjoy the show. If you got a question, we'll try to answer it. Until next time, though, we'll see you later.
Lisa
Bye-bye.

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