His daughter whispers, ‘Where are your paychecks?’ in his ear. My stepfather is in a nursing home with dementia. How can my mother and I protect him?
Dear Quentin,
I’m assisting my mother with all affairs connected to her husband, my stepfather, who has advanced dementia and has now resided in a nursing-home facility for the past year. I shall refer to him as “Sam.” They have been married over 40 years; the relationship was rocky at best. They never shared joint bank accounts, filed joint tax returns, or anything financial.
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Now this issue presents a challenge for her when paying Sam’s medical bills out of his income, because she was never provided access to his bank account(s) or even a pin number to his debit card. My mother has durable power of attorney for Sam’s healthcare and is his primary representative. No one has financial POA for Sam.
The Social Security Administration has granted my mother authority to represent Sam on his unearned income, Social Security Insurance and pension payments, which are direct deposits. A portion of these funds is needed to pay for Sam’s healthcare and another portion is allowed for his wife to keep under Medicaid’s’ community spouse resource allowance rule (CSRA).
Poor relationships with family
One of Sam’s daughters constantly visits the nursing home and whispers, “Where are your paychecks?” into his ear, which I find disturbing. Having advanced dementia, Sam is unable to process clearly, or respond appropriately, and becomes outraged and physically abusive towards everyone for days on end after his daughter’s visit.
My mother is due to receive a small health-benefit check from her health-insurance company, because she was recently treated for a covered health issue, which provides an additional payout when the illness is diagnosed/treated. She doesn’t want to deposit her benefit check into an account where it would count towards her income.
She does not have the resources to pay legal fees to obtain legal guardianship of Sam, and he has three adult children with whom her relationship is not good; they would likely contest the guardianship, which would drive the costs up, and they do not contribute to their father’s care in any way. However, they do consistently stir up trouble for my mother.
Of course, Sam and my mother are ultimately the root cause of these poorly developed relationships. Nevertheless, Sam is helpless at this time. So my questions are twofold: 1) How can she manage his finances as a healthcare proxy? And 2) Is there a legal way for my mother to maintain her health-benefit check for herself, and what would that be?
Just About Burned Out
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Dear Just About,
Beware of ominous whispers in the ear of an ailing relative in a nursing home.
If your stepfather was still competent and had testamentary capacity, he could give your mother permission to be his financial power of attorney. Given that his illness appears to be very advanced and at least one daughter has made worrying comments when she visits him, your mother — as his wife — should apply for legal guardianship or conservatorship.
The sooner you do this, the better. Unfortunately, those who have dollar signs in their eyes when an elderly person falls into ill health include children, siblings, former partners who miraculously reappear on the scene, neighbors, and even caretakers and nursing homes themselves (bad actors that give the caregiving industry a bad name).
Marc M. Stern, partner in the private client service group at Greenberg Glusker in Los Angeles, says if Sam executed a financial power of attorney when he signed the healthcare POA, there may be someone else with the power to oversee his finances. “Similarly, if Sam had a trust, the successor trustee should be able to manage the finances while Sam lacks capacity.”
Court-appointed guardian
Conservatorship and guardianship varies by state. In California, for example, conservatorship can only be granted if a doctor has declared the person legally incapable of making decisions for themselves, and the conservator — your mother — must complete an official court document called a “capacity declaration,” the Alzheimer’s Association says.
The probate court will schedule a hearing at which you and other interested parties, in addition to the ward — that is, your stepfather and/or his family members and doctor — can give evidence. Prospective guardians must prove the ward is legally incompetent, which could be due to illness like Alzheimer’s disease, old age or even substance abuse.
“Once this is submitted to the court, it must be confirmed by a judge,” the association adds. “Most families that pursue conservatorship of a loved one must hire an attorney, which can be an expensive procedure.” A financial power of attorney would have enabled your mother to make decisions for him without having to go through this arduous process.
“Regardless of who the conservator will be, he must be approved to act as conservator by the court. Once appointed, his actions — especially all financial transactions — will be closely monitored by the court,” it adds. If they are found that they are not acting in the best interest of your stepfather, they can be removed and fined for violations of the probate code.
‘Wrap-around’ Medicaid coverage
As for your second question, which appears to relate to Medicaid, the Medicaid and CHIP Payment and Access Commission, a government office that provides policy and data analysis, says that when Medicaid benefits supplement other coverage sources, including Medicare and private insurance, it’s often referred to as “wrap-around coverage.”
Medicaid is seen as a source of “last resort.” Under the program’s third-party liability rules, “other legally responsible sources are generally required to pay for medical costs incurred by a beneficiary before the Medicaid program will do so,” MACPAC says. Medicaid enrollees must identify third-party coverage, and give the agency the right to pursue third-party liability.
“Medicaid may make arrangements for private plans and other entities to pay providers for Medicaid-covered services,” it adds. “For example, the majority of Medicaid enrollees receive at least some of their benefits through managed care plans, which contract directly with states and must comply with requirements that are specific to the Medicaid program and its population.”
There is a lot you can do to protect your stepfather, and help your mother. Godspeed.
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