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Jewish World Review Sept. 10, 2007 / 28 Elul, 5767 Til poverty do us part By Jan L. Warner & Jan Collins http://www.JewishWorldReview.com | Recently, a reader wrote in about his 68-year-old wife. She had been the breadwinner in her household, and she suffered a stroke that left her unable to swallow or communicate. She was being tube fed. In her name are $100,000 in savings, the house and $230,000 in an IRA. The 70-year-old husband of 44 years is a diabetic with very little savings and no pension. She did not sign a power of attorney, and he is unable to access the funds in her name to either pay the $7,000 per month it costs to maintain her in a nursing home or pay his expenses. When he filed a Medicaid application, he was told that, as a couple, they had too much money. Because she hadn't signed a power of attorney, he was forced to bring guardianship and conservatorship actions in the probate court, but he wasn't allowed to make transfers to himself of the residence or bank accounts because two of their three children, who have been estranged for years, objected to anything coming out of their mother's name. He was placed on a budget and allowed to live in the home that he and she had occupied, but he did not have enough money to be able to continue living in the house. After discussing how long-lost children can come out of the woodwork to add to the difficulties, we suggested that since inter-spousal transfers are allowed as a matter of public policy by Medicaid, not allowing transfers of the wife's assets to him might well be a denial of rights under the equal protection clauses of the United States and their state constitution. And we suggested that, at a minimum, the residence should be transferred to him based upon Medicaid's minimum and maximum amounts of countable resources that can be set aside to the "spouse in the community." In these types of situations, more and more seniors are turning to matrimonial actions, rather than probate court actions, as a better way to protect both spouses. While the Nursing Home Reform Act of 1987 addressed the concern of clergy and politicians who saw seniors divorcing so both did not become destitute, those who enacted the February 2006 DRA (Deficit Reform Act) did so with little foresight or idea of how this draconian act would affect the middle-class "American Family," to which politicians give lip service but no substantive solutions. For more and more seniors, "'til death do us part" has morphed into separation and divorce when nursing home costs run from $5,000 a month to more than $12,000 monthly, depending on where you live. To allow all — or the vast majority — of family resources to be spent on nursing-home care takes away from the ability of the healthy spouse to live. Regardless of your opinion on this topic, allowing community spouses to become dependent upon children or other family members is inappropriate. Yet, increasing divorce rates among our seniors is upon us. And in a large number of these actions, elderly citizens are facing the extensive costs of long-term care. It is truly a sad commentary that some elderly couples today are forced to divorce in order to survive financially and continue their lives. Those who chastised seniors for getting divorced under these circumstances are the same "experts" who now sit idly by and watch government waste proliferate. Indeed, seniors who get divorced in order to maintain themselves financially are maligned, while those who steal tens of millions of dollars from the Pentagon and go undetected for nearly a decade quickly become yesterday's news. 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. Archives © 2007, Jan Warner

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