This just became a mess...

December 27, 2008 7:12 PM

My wife needs to speak to an attorney. But what kind does she need?

My wife has found herself in a very difficult spot through no fault of her own. She's now needing to talk to an attorney, but she's not sure which kind she needs to talk to.

Her father recently fell seriously ill. For a couple of days he was in critical condition. He has substantial savings - well into five figures. As far as my wife is concerned that money is gone, seeing that he has no medical insurance and that he's been racking up one hell of a bill and will continue to. She is concerned with making sure he gets the care - and the placement, since he will not be able to live alone now - that he needs. So she's preparing to apply to put him into the state's indigent care system, to take effect after his bank accounts have been exhausted paying his bills. The representatives of the state's system have been working with her though this.

However, one of his siblings has severely complicated the situation. Apparently she convinced him to put her name on the account earlier this year. A couple of days ago, she pulled all the money out. Her and her husband told my wife that they were making sure that the money went where her father intended, to be her inheritance. When she questioned them, their response was angry, and along the lines of "We can't let the state take all of his money!" (They're pretty anti-government, which in this case is very ironic.) They are now preparing to apply to the indigent care system for him, only showing that he has little to no assets. They're also trying to coach my wife on this, and she's trying to put on the brakes and get them to put the money back in the account. As I understand this, what they are trying to do right now would be considered fraud. She wants to get the money put back and play it straight so that he can get the care he needs.

No one has financial power of attorney right now, but my wife is seeing what she has to do to get it. My wife had no access to the account that was drained. She is on another account with him, but it's small; it's never had more that a few hundred bucks in it, and he set it up to pay for her occasional college costs, and some things that he wanted her to order for him online.

My wife knows that she's going to have to have an attorney to get guardianship, or conservatorship, or whichever it is to care for a parent that can't take care of themselves. But right now, due to the actions of her aunt, she wants to speak with an attorney as soon as possible to make sure that she herself is protected. She's done nothing wrong, hasn't touched a cent, is providing documentation as requested, and is trying to keep everything on the up and up, but doesn't want to be put at risk to to the actions of others. Should she talk to the same attorney that would be helping set up a guardianship, or is this something that she should talk to a criminal defense or some other type of attorney?

Anon email addy on this is [e-mail]

posted by anonymous to law & government (10 comments total)

I think the lawyer who she'd talk to about guardianship/conservatorship has probably seen situations like this before and can give advice on who else she needs to talk to
posted by winston at 7:22 PM on December 27, 2008

She can probably call the state bar ... it has a referral service. You didn't say what state you lived in, though.

An attorney specializing in estate planning and elder law could probably answer all your questions here. Make sure she is specific that she personally is looking for a lawyer, regardless of whether you hire that lawyer for her father's estate. Medicare/medicaid planning is something they can definitely help you with.
posted by Happydaz at 7:45 PM on December 27, 2008 [1 favorite]

If you are in Virginia, or DC I have a referral for you. I probably know of a firm that can get you started in Mass. as well.

Otherwise, usually trusts and estates lawyers handle this work. Ask a non-trusts and estates lawyer you know to give you a referral in your local area. Otherwise, contact your state bar association. Do not assume the state system is what you want. If you are religious, local religious bodies may have entire programs devoted to this type of work, including the catholic church and various jewish religious organizations. Those people should give you advice.
posted by Ironmouth at 7:48 PM on December 27, 2008 [1 favorite]

I am a criminal defense attorney, and based on the facts you have presented there is no need for your wife to consult with a defense attorney at this time. Instead, she should contact an attorney with experience in estate planning. Estate planning can be complicated, and I suggest she find an attorney who does nothing but estate planning. If you know a lawyer you like and trust, ask him or her for a referral.
posted by kellygreen at 8:12 PM on December 27, 2008

Thirding the need for an estate attorney. Also, if your Dad is on Medicaid, don't assume that all of the funds are going to be consumed by medical bills. Also, this is something that needs to be moved on quickly, so it will be helpful if you have can organize as much information as possible before your visit with potential attorneys.
posted by ajr at 9:16 PM on December 27, 2008

I am not that knowledgeable in this area but I am pretty sure that when seeking indigent status for nursing homes etc. that asset distributions to relatives within two years (or some similar time frame) are figured back into the person's assets for just this reason. I would lawyer up with a medium size or larger firm which has resources including trust and estate lawyers, health law and elder law.
posted by caddis at 10:38 PM on December 27, 2008 [1 favorite]

Where are you? U.S.? Singapore? Guam? South Africa? MetaFilter is an international website and we really can't give you answers without knowing what laws apply here. Even if it is the U.S. we'd need to know what state.
posted by crapmatic at 11:22 PM on December 27, 2008 [3 favorites]

IANYL, and anyway, I'm neither an estate lawyer nor a criminal defense lawyer. In any case, it would be helpful to know where your FIL is - from the way you wrote your question it doesn't sound like the US to me, or it sounds like you were intentionally leaving the jurisdiction issue totally vague. But really - assuming US - your wife just needs an estate lawyer because this stuff is complicated:

MEDICAID TREATMENT OF JOINT ASSETS IS VERY COMPLEX
Making your assets joint with another person will not necessarily protect you in the event of a catastrophic illness. In New York State, a joint savings account is presumed to belong entirely to the Medicaid applicant.

There are different rules for joint bank accounts, joint securities, and jointly owned real estate. These rules have changed over time and some Medicaid agencies have misinterpreted the law and improperly counted joint stock brokerage accounts as belonging entirely to the parent. In an Administrative Hearing in the Fall of 2001, the Koldin Law Center successfully argued that a joint parent/child brokerage account is owned one-half by the parent and one-half by the child thereby saving the child a substantial sum of money. The Medicaid agency involved had counted the entire joint brokerage account as belonging to the parent for the purpose of Medicaid eligibility.

If you have joint accounts or joint assets, the rules are complex and a comprehensive review of your legal options is recommended.

The aunt's conduct doesn't strike me as criminal - she is a joint account holder after all - but again that would depend on the jurisdiction. More importantly, I can't think of a good reason for your wife to rat out her aunt; generally bringing the criminal justice system into one's family is not a good idea.
posted by n'muakolo at 7:19 AM on December 28, 2008

IAAL but IANYL. I've had a lot of personal experience and some professional experience with this area of law. Try to find a trusts & estates attorney that specializes in Medicaid planning. Florida, for example, has board certified attorneys in Elder Law. This is an extremely specialized area of law, even within the niche of trusts and estates.

I am not that knowledgeable in this area but I am pretty sure that when seeking indigent status for nursing homes etc. that asset distributions to relatives within two years (or some similar time frame) are figured back into the person's assets for just this reason.

This is called the "lookback" period, and it is now five years. You can read this article to familiarize yourself with some of the potential issues re: what your aunt has done, since the topic will come up when you speak to your attorney.
posted by gatorae at 12:34 PM on December 28, 2008

IAAL but IANYL. My practice involves some estates as well as guardianships, and we have carved out a bit of a specialty in guardianship and probate litigation (I'm in Florida, go figure). Many many many guardianship matters start off with the fact pattern you've presented. Once a guardian, professional or family, is appointed, they can investigate any financial impropriety, and, if necessary, seek authorization from the court to pursue the same. (The "joint account" issue is a sticky wicket: one would have to determine whether there was anything that indicated that her name was added for convenience purposes or whether Dad had capacity at the time, etc.) As others have pointed out upthread, a medicaid spenddown must be done carefully. . . yanking money out of a bank account usually doesn't do it, and can sometimes screw up eligibility. In this state, one can be investigated criminally or pursued civilly for "exploiting" the elderly and that includes financial exploitation as well. Perhaps your state has similar laws. If you have a phonebook or a bar referral line, ask for an eldercare attorney or an estate/guardianship attorney. A good eldercare attorney will be able to help with medicaid, placement, guardianship, as well as powers-of-attorney, and any other advance directives your father's situation may warrant. Good luck to you and your wife.
posted by Jezebella at 1:37 PM on December 28, 2008