Elder Law Report
Elder Law Report
My Parent Went to the Nursing Home... Now What?
What happens when a loved one suddenly needs nursing home care and you've done absolutely no prior planning? The financial devastation can be overwhelming, but according to elder law attorneys Greg and Jordan McIntyre, all hope is not lost.
This father-son legal team walks through the stark reality of crisis planning for long-term care. They contrast the difficult path of guardianship proceedings—which require court oversight, hearings, and months of legal work—with the protection offered by properly drafted powers of attorney. As Jordan explains, "If there's a limitation on the gifting provision, it could hinder my ability to protect assets." Not all legal documents are created equal, and standard forms rarely contain the specific provisions needed for effective asset protection.
For married couples facing nursing home placement, the McIntyres offer particular hope. Even without prior planning, strategies exist to implement the "community spouse resource allowance" and other legal mechanisms that can preserve significant assets for the healthy spouse. They explain how the rules allow for protecting your home and savings while still qualifying for benefits you've paid for through years of tax contributions. As Greg notes, "The real power is being able to know the rules so well that you operate out in the open... within our rules that we allow."
The attorneys emphasize that crisis planning isn't about hiding assets but working strategically within established legal frameworks. While proactive planning always offers the most protection, their practice includes a dedicated department for helping families in emergency situations. Whether you're planning ahead or facing an immediate care need, understanding these legal strategies could save everything you've worked for. Schedule a free consultation to learn how proper planning can protect your family's financial future.
Say Siri stop.
Speaker 2:Hi, I'm Greg McIntyre, the Elder Law Guy. We're going to talk about what happens if you need to go to nursing home care. You need to have a long-term care health situation and you aren't prepared. You've done no prior planning whatsoever. Jordan, if you sit down with a client and they have done no prior planning whatsoever, they don't have powers of attorney and you're sitting down with the spouse of someone who has gone in long-term care, what is your advice? What is your?
Speaker 1:advice At that point. If there are no powers of attorneys, I might be looking into potential guardianship to try to save some assets and do a benefits application, or we're just going to do a traditional spin down. But if if the individuals are married, I can save a certain amount for the spouse it's called the community spouse resource allowance. There's ways where I can transfer some assets and still get the individual who needs care and qualified for Medicaid.
Speaker 2:You're really, really too hype right now. I'm going to need you to dial down the coffee a little bit. Dial down the caffeine intake. I agree, I'm just kidding with you, son.
Speaker 1:you've been hard at work today yes seeing clients doing doing legal work I've been hard work out this morning too hard workout this morning, jordan.
Speaker 2:You get up at what like four or five o'clock in the morning every morning, every day. I would suggest staying up watching television to at least midnight to 2 am and then sleeping to at least seven. That's what your mom makes me and we work out in the evenings she's not the only one that makes you do that.
Speaker 2:You do that anyways I like doing the morning. Sometimes, though, we need I need to get on Jordan's morning program, but what Jordan says is exactly correct. I would agree with you. No-transcript to have a conversation with a client, that guardianship is needed, court proceedings guardianship is needed. We've got to prepare, we've got to go to hearings. We're kind of under court oversight. If that's not what we want to happen, how do we avoid that?
Speaker 1:Get a general, durable power of attorney.
Speaker 2:General, durable on the financial and legal side. We proactively can appoint the person we want to handle it For our family. For me it's your mom, this is my primary and you are my secondary, my oldest son. So lots of responsibility there. You're the successor Agent. But then what about the healthcare side? Healthcare and placement.
Speaker 1:You would want to get that as well. Right, if you only have a general, durable power of attorney but you want to make some health care decisions, you would still have to go get guardianship, to be what's called guardian of the person, or you could make health care decisions.
Speaker 2:If you avoid that, you don't want a health care power of attorney in place which is totally separate than the financial and legal power of attorney which is called the general durable power of attorney. Right, yes, and a separate part of the statute. So you know it's very different. We can avoid those things really at very low cost compared to a guardianship, and without court interference or oversight it has to, or the time it takes to go through the guardianship process, which can take a couple of months in full. So guardianships can be contested, right.
Speaker 1:Yes, there's no guarantee that you'll be appointing the guardian.
Speaker 2:No this is a guarantee that you're appointing the person that you want to handle your affairs. You know, I might have a son who's a really smart attorney and I'm going to appoint him to handle my financial affairs and legal affairs. I might have a daughter who becomes a doctor or nurse and I might appoint her to handle my health care affairs. Right, it's just you pick the people that are right in your life and it's your choice that way when you sit down, if you sit down with that child, there's there, let's say, you sit down with the wife. The husband's gone into nursing home care. She's afraid she's going to lose everything the retirement, the house, if that spouse has a fully well-written just know powers of attorney are not all created equal. What's written in the power?
Speaker 2:of attorney equals the powers you're actually giving someone else. People don't understand that. They work themselves into corners or with restrictions they're unaware of because they don't read the power of attorney they have. They don't understand. So if you have a robust, you trust the person who you appointed power of attorney general, durable power of attorney who you appointed power of attorney general, durable power attorney and a healthcare poverty. It covers everything, including a hipaa authorization and mental health care provisions written in everything. You're sitting down with that. Now what would you advise?
Speaker 1:well, you're talking about how all powers of attorneys aren't the same. I'm going to go look at those gifting provisions under whatever power of attorney they have. Hopefully they got it done with us. You know we tailor our documents to look ahead for these situations so that the agent under the power of attorney isn't limited right. But if there's a limitation on the gifting provision it could hinder my ability to protect assets over that amount. It's going to be more difficult.
Speaker 2:Sure, but if I properly put the powers of attorney in place, it's going to be a conversation as to okay, let's see what benefit is available Under the benefits rules. How can we protect these assets for the use and benefit of the healthy spouse, for example, and then qualify the other spouse for a benefit Because the healthy spouse might have many healthy years to live, and we do that all the time If we're sitting down with someone who has no planning. We're going to still try to work it through. We're going to see what options there are. Even under a guardianship, we can go that route. We're going to still try to work it through. We're going to see what options there are.
Speaker 2:Even under a guardianship, we can go that route. We're going to be able to petition the court for our version of how to protect the assets and qualify for the benefit. But that's a separate part of that. Proceeding After the guardianship is concluded, guardianship letters have been issued which appoints the guardian. Then we're going to start petitioning the court for what we want to do. Proceeding after the guardianship is concluded, guardianship letters have been issued which appoints the guardian. Then we're going to start petitioning the court for what we want to do and a guardian can sign a ladybird on a house to protect the house. That is a gray area, but a guardian I would say it's a black and white area, because there's no transfer of the asset until the person passes away and at that point it's out from under the jurisdiction of the guardianship of state when the transfer happens. So again, it is important to plan ahead.
Speaker 2:But if you're in an emergency situation we have an entire department that is built for that. We go into that mode and we start planning to help the family. Our goal is to help you protect your hard-earned money and property, and we're talking to somebody who works hard. This young man right here is equally as hard a worker as I am, if not more, and is the most solid, steady, reliable, trustworthy person I've ever met.
Speaker 2:Thank you, you're welcome. When we're working hard, we're taking care of our family, we're trying to hold on to a little bit of our money. After we pay taxes, buy a home, raise children, it'd be nice to be able to not have to lose it all because we have to access a benefit that we already paid for many times over with our tax dollars, or lose our house after we've already paid three times as much as we bought it for to the bank for a mortgage over 30 years. That's the system you're in, realize it or not. Take the blue pill or take the red pill. I would say, get out of the matrix that you think you're in. The key is to know the rules. Even in that movie, the guy who is the hero one which is just a misspelling of Nick was his name Nia. Yeah, so, yeah, same letters. He just need the system, and that's the thing you're never hiding asking you're never not showing everyone around you exactly what you're doing.
Speaker 2:the real power is to be able to know the rules so well that you operate out in the open and and show everyone exactly what you did and they're like oh I see what you did there within our rules, that we allow and that's the only way we operate. You need to operate. In order to do that, you need guidance. Come see myself or the very learned young man there, jordan McIntyre. Jordan, would you offer a free consult?
Speaker 1:I would. I think this is one of my favorite areas of our practice. It's a lot of math, but then also I feel like I'm really helping people protect their property. I think there's multiple ways for me to solve these puzzles and really figure out how am I getting somebody the assistance they need during their life and then passing all their assets onto their loved ones? So this is really probably my favorite area of our practice.
Speaker 2:It's very much like a game. It's very strategic under the rules, so it's super cool to be able to do that and to be able to have that as a really robust part of our practice. So give us a call If you'd like to schedule that console. Our number is 1-888-999-6600. Or you can schedule directly on our calendars at mcelderlawcom slash schedule. Thank you. Thank you, jordan, appreciate it. Thank you, dan.
Speaker 1:See you next week. Bye, bye, bye, bye.