Legal Question in Elder Law in New York

Re: need help with my dad

If your dad had previously given you a power of attorney, or if he is able to give you one now, you may not need to be appointed as his guardian. But if you don't have his power of attorney, and he lacks the legal capacity to sign one, you may have to petition to become his guardian. A guardianship proceeding usually takes several months, and may cost between $5,000 to $10,000. If you are appointed as his guardian, the court can direct that you be repaid this expense from you father's assets; if you are not appointed as guardian, you are stuck with the expense. Most lawyers will require you to pay up front.

Once you have authority to act on your father's behalf, you can do Medicaid planning to try to preserve some of his assets. If he is going into a facility right away, we can usually save about half of his assets.

In order to qualify for Medicaid, your dad can only have $3900 in total assets. He can either spend down all of his assets until he reaches that level (which would leave him broke), or he can transfer his assets.Transferring assets creates a waiting period, or penalty period, during which he would be ineligible for Medicaid. Under the current formula, for each $6,200 he transfers, he would be ineligible for one month.

Typically, we would create an irrevocable trust and transfer half of his assets to the trust, and use the other half to private pay for his care while we get through the waiting period created by the transfer to the trust.

If you want more information, please contact me via e-mail.