Jewish World Review Nov. 15, 2004 /2 Kislev, 5765
Jan L. Warner & Jan Collins
Son's sins infect Mom's care
Q: My widowed mother is 85. Her health has been pretty good, which is a blessing. The curse is my 62-year-old brother, whom she has "supported" since he was in his 30s. He began to live with her after four failed marriages and too many children for me to count. A house that she gave him just three years ago was repossessed after he ran up mortgages and credit cards and refused to pay them. I don't think he has worked more than a year straight his entire life, and is not eligible for Social Security. Mom recently bailed him out of jail for non-support. One of his ex-wives tried to sue my mother for child support, and my brother had Mom sign some kind of paper that my sister and I think guarantees payments of support or something for him.
He is a parasite, but he is also the baby in the family, and Mom won't listen to my sister and me. She did tell me that she had gone through more than $100,000 in the past two years bailing him out plus the $75,000 house she gave him. Still, she won't put him out on the curb where he belongs. And she tells me that if she gives him her house, it will be protected for her. What happens to Mom if she gets sick and can't pay for her own care? How can we stop our brother from talking Mom into giving him her house worth nearly $150,000? I am ready to report him to Social Services if that will help.
A: While it may not make you feel any better, the situation you outline is not all that unusual in today's society. That said, if your mother has mental capacity (and it appears she does), she can do what she likes with her assets and funds. While there may well be some undue influence, financial exploitation and manipulation, we don't know if it rises to the level required for Adult Protective Services to become involved. And, even if APS becomes involved, we don't know if the investigation will net the results you seek.
The obviously ignored, but far larger, problem is what will happen if your mother breaks a hip or becomes chronically ill and requires ongoing care. Generally, the expenses for assisted living are paid individually, and your mother may have exhausted the funds with which to pay for this care.
If, however, your mother requires nursing home care during the next three years, an even bigger crisis could be on the horizon. While we don't know her income or other assets, the gifts she has made to and on behalf of your brother over the past three years at least $100,000 plus the $75,000 house will probably disqualify her from receiving Medicaid benefits for a long time. And continued gifting will only perpetuate the disqualification period. In other words, she will be required to pay for the cost of nursing home care from her already picked pockets, or from the sale of her home if she does not have other resources. At a burn rate of between $5,000 and $8,000 per month, she may find herself in deep trouble and without care.
As far as your mother's house is concerned, for Medicaid purposes it is not a countable resource, meaning that assuming she otherwise meets the three-pronged Medicaid test for assets, income and medical condition, her house will not count. When she talks about "protecting" the house by transferring it to your brother, she has probably misunderstood the rules that allow a residence to be transferred without penalty to certain exempt classes of recipients, including 1) a blind or disabled child, or 2) a child who has lived in the house with an ill parent for at least two years before institutionalization and has provided care that allowed the parent to avoid being placed in a nursing home.
Clearly, since your brother does not fall within either of these categories, a transfer of the otherwise exempt home will cause not only a longer period of Medicaid disqualification, but also will expose the property to your brother's debts and claims by his former wives and children for child support.
If someone does not stop the train here, your mother will clearly run out of track and may well lose her home. We suggest that someone outside the family that your mother trusts explain to her the facts of life. Otherwise, we don't know if a solution to this insidious problem exists.
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JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here.
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© 2004, Jan Warner