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Nov. 23, 2009
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Nov. 19, 2009
Binyamin L. Jolkovsky: Please Listen to this Godcast (5 minutes)
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Nov. 18, 2009
Rabbi Yonason Goldson: What Judaism has to say about the secret of the Mona Lisa's smile
JWisdom.com: The (Jewish) Dating Game with Rabbi Lawrence Hajioff (8 minutes)
Nov. 17, 2009
Steven Emerson: How Does the 4th Amendment Impact Terror Finance Investigations?
JWisdom.com: If Frank Sinatra married Edith Piaf with Rabbi Y.Y. Rubinstein (2 minutes) Life lessons from what would be regarded as the most inappropriate lyrics ever sung
Nov. 16, 2009
The Jewish Ethicist by Rabbi Dr. Asher Meir : When borrowing is stealing
JWisdom.com: Deconstructing faith with Rabbi Warren Goldstein (9 minutes)
Nov. 13, 2009
JWisdom.com Sarah's subjective reality with Rabbi Sroy Levitansky ( 6 minutes)
Caroline B. Glick: Obama's failure, Netanyahu's opportunity
Nov. 12, 2009
The Kosher Gourmet By Marialisa Calta : A sweet sweet potato treat
JWisdom.com Does God get tired? with Rabbi Harvey Belovski ( 5 minutes)
Nov. 11, 2009
Rabbi Avi Shafran: Jews and money: When anti-Semitism isn't
JWisdom.com Marriages are not made in Heaven with Rabbi Lawrence Hajioff (VERY fast 15 minutes)
Nov. 10, 2009
Michael Doyle: Author of book exposing CAIR ordered to remove supporting documents from Web
JWisdom.com If the creation so loudly shouts the existence of the Creator, why aren't more people believers? with Rabbi Naftali Brawer (9 minutes)
Nov. 9, 2009
Mark Steyn: Shooter exposes hole in U.S. terror strategy
JWisdom.com It's never too late to have a happy childhood with Sarah Chana Radcliffe (5 minutes)
Nov. 6, 2009
Rabbi Berel Wein: Choosing to hear
JWisdom.com Zero to 1/60th: How to Empower An Hour with Gavriel Aryeh Sande (7 minutes)
Caroline B. Glick The mullahs' big week
Suzanne Fields A Fallen Wall for Fallen Man
Nov. 5, 2009
The Kosher Gourmet: Three scrumptious -- but simple -- butternut squash dishes
JWisdom.com Hidden Hints: Unlocking Faith & Prayer with Rabbi Jay Yaacov Schwartz (10 minutes)
Nov. 4, 2009
Tom Hamburger and Kim Geiger: Should prayers be covered?
JWisdom.com When God played peacemaker With Rabbi Sroy Levitansky (5 minutes)
Nov. 3, 2009
Martin Peretz: Beware, Barack. Beware, Rahm. Beware, Axelrod
JWisdom.com Are you are closet idolater? With Sara Yoheved Rigler (10 minutes)
Nov. 2, 2009
Paul Greenberg: The Holocaust is now on Facebook
JWisdom.com Abraham's Strange Change With Rabbi Yitzchok Fingerer (5 minutes)
Oct. 29, 2003
Mortimer B. Zuckerman: Graffiti On History's Walls (MUST-READ!)

Jewish World Review June 23, 2008 / 20 Sivan 5768

Get an attorney to protect disabled brother

By Jan L. Warner & Jan Collins


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http://www.JewishWorldReview.com | Q: I am 58 and have one disabled brother (age 48), who has always lived at home with our parents. Our father died last year and left everything to our mother, who, at 83, has been diagnosed with dementia. Although her doctor says she needs full-time care, he believes she has enough mental ability to sign a power of attorney and a will, but she won't. In fact, she has become very paranoid and refuses to sign a power of attorney for fear that I will take everything from her, ignoring the needs of my brother, who can't live alone.


Mom was recently committed by her physician when she threatened a nurse in his office. She is now being medicated properly, but the doctor says she must be placed in a nursing home. Since she has signed no power of attorney, I finally was forced to apply to our local probate court for conservatorship and guardianship over her.


At more than $5,600 monthly for a nursing home, her money and property will run out in short order, leaving my brother unprotected. I went to the probate court to inquire about ways to set aside funds for my brother, but I was told this could not be done. Mom owns a house worth $130,000. Her Social Security and Dad's retirement is $1,600 monthly. She is down to $55,000 in her accounts, still too much to qualify for benefits.


Without some planning, my brother will become a public charge. My wife has agreed for us to take care of him. I can't understand why the court won't help me. I don't want anything for myself.


A: People who have mental capacity — or their spouses and agents acting under durable powers of attorney with appropriate specific language — have the authority to change beneficiary designations, transfer assets, and use various estate-planning and Medicaid-planning techniques without court approval. However, when dealing with incapacitated people, courts are often asked to determine if, how and when an incapacitated person can transfer assets to qualify for Medicaid, which is what we assume you want to do for your mother in order to protect your brother's future.


There may be limited ways in which conservators can engage in some planning without court approval. For example, since conservators are charged with making prudent investments for their wards, should there be a Medicaid-planning technique that can be classified as a "prudent investment," this might be accomplished without judicial approval. Additionally, since some state laws allow a fiduciary to make purchases for the benefit of a ward without prior judicial approval, a conservator might be able to make a purchase that would also enhance a Medicaid planning strategy.


By and large, however, Medicaid planning requires prior judicial approval before implementation. Some courts have been very creative and helpful. For example, one California court authorized gifts by the guardian of an incapacitated person to family members in order to reduce estate taxes. And a New York court allowed the guardian to make gifts on behalf of an incapacitated institutionalized spouse to the community spouse in order to make the spouse in the nursing home eligible for Medicaid.


We believe that incapacitated people should have the same rights as people with capacity to take advantage of not only basic estate-planning opportunities but also Medicaid planning through a fiduciary, especially where, as here, your mother and father had been taking care of your disabled brother, and such a transfer would have been made by a reasonably prudent person with capacity to understand the situation.


Taking the NextStep: We suggest that you contact an experienced elder-law attorney, who can explain your case to the court. This is a time for effective "lawyering." And for our readers who have not yet faced this situation, we urge you to make sure you have appropriate durable powers of attorney that will allow trusted agents to make these decisions for you if you become incapacitated — without the necessity of court intervention.

Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here.

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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