Month: November 2021

Don’t Go Home!

Don’t Go Home!

If you or a loved one is in the hospital, the natural thing is to want to go home. That’s clear. But what if you’re in the nursing home? Same thing. Residents want to go home, and their families want them home.

But what if there’s nobody to care for the ill person? What then? Think carefully before you take someone home. Can they be left alone? Can they take care of their activities of daily living? Will they be safe?

I had a case last year with a severely disabled man who was being discharged from the hospital. His second wife could no longer care for him, so she wanted him placed in a nursing home. The man’s daughter from his first marriage, along with one of his sisters, decided to take matters into their own hands and kidnap the disabled man from the hospital. After two nights at the daughter’s house, they realized that they could not care for the man, so they took him back to the hospital emergency and just dropped him off and left him there. Yes, absolutely CRAZY, but it happened.

The hospital finally discharged the gentleman to a nursing home, and now Medi-Cal is paying for his care and he has 24-hour nursing care available to him. Everything finally worked out well once the family stopped fighting and finally followed my instructions — but it took a court case and the judge’s order for the daughter and sister to back off. Unnecessary expense and stress for the family.

A couple of weeks ago I had a similar situation where the disabled man had been living with his caregiver for several years, but then fell and banged his head and had to go to the hospital emergency. The doctor said he could no longer go home, but the discharge nurse at the hospital was demanding that the man go back to live with his caregiver, despite the doctor’s statement that he should not go back there. The disabled man had been fighting with his caregiver for years, but the main reason he could go back there was because the caregiver was his 94-year-old father! Yes, it was clear that the 94-year-old father could no longer care for his severely disabled son, and that for the health of both of them, the son had to be placed in a skilled nursing facility.

Another family came to me for help with their mother. She needs the care of the nursing home, but the social services person at the nursing home is telling her husband that he should take her home and she’ll be much better off at home on hospice. Really? The husband is 91 years old and already has significant dementia. The adult children know that he’s unable to care for their mother, but the nursing home staff is trying to convince him to just take her home. Why would they do such a thing? Because the nursing home can make more money by getting her out and using her bed for someone who comes directly from the hospital on Medicare (not Medi-Cal) and the nursing home has a much higher profit on the Medicare patients. It’s not about the care — it’s about the nursing home profitability. And unless you know the ins and outs of the billing and the system, you’ll be at a disadvantage when working with hospital and nursing home staff who are trying to bamboozle you for their own benefit.

Know your rights. Be informed. Work with an experienced elder law professional to guide you.

Gift or Inheritance?

Gift or Inheritance?

If you’re planning to make a gift or leave something to someone after your death, think about the value you’re giving, whether it’s real estate (Prop 13?), stocks, cash, or IRA/401k.

Who are you giving it to? I recently had a new client who couldn’t come to see me because his wife was failing fast in the hospital, and then she died. The old trust done years ago was a mess, but my client was very clear about his wife’s wishes, and he wanted to respect those wishes.

The surprise came when he told me that his son-in-law said that he had spoken with the attorney for the daughter and son-in-law, and supposedly it was better to not leave anything directly to the daughter, but to the joint trust of the daughter and son-in-law. Really? I already knew that the family didn’t trust the son-in-law, and this could have been a huge disaster.

If you leave something to your daughter, and she later gets divorced, we can go back via “tracing” and show that that money or property was hers before she comingled it as joint property with her husband. This puts a “line in the sand” to establish the property as her sole and separate property at some point in time. Even if a divorce court grants a portion to the husband, it will generally only be a portion of the increase in value after the initial gift.

I saw this previously in another family where the son-in-law convinced his wife’s parents that they needed to gift the house to him and their daughter to get the father on Medi-Cal. This was not true then, and it is not true now, but the wife’s parents had made the gift at the urging of their son-in-law, so half of the million dollar property became his at the moment of the gift. If the young couple ever gets divorced, the son-in-law gets half of the property. That wasn’t what the parents wanted.

Don’t let these things happen in your family.

I have another case now where the daughter wants to sell her mother’s house before the mother dies, but this will cause them to owe about $600,000 in capital gains tax. Yes, that’s a huge amount of tax, but it’s an expensive home with a lot of gain from when they built it in the 1950s. The mother is currently in the nursing home and may not live much longer, so why sell now and pay $600,000 in tax? If the house is sold after the mother’s death, they won’t pay that tax. Yes, they’ll save about $600,000. If they need money now, we have other solutions to get some money before the mother passes.

Why would they sell now and give away $600,000 in tax? It appears that the financial advisor is pressuring the daughter to do this. Why would the financial advisor push for this? Because the financial advisor will then invest over $2 million of the proceeds to create wealth from fees for the financial advisor. Who is this advisor really working for?

People generally want to leave something to their family, friends, or a charity or two, but think it through before making the gift. Should it be done before your death? After? Will you need that money if you’re ill? What are the tax consequences of giving it now as opposed to giving it at death?

When you’re planning your gifts, talk to an expert first, and make sure that the expert isn’t making suggestions based upon their own self-interest.