My mother has AD. We only recently got health and financial POA for her. We were advised by our eldercare attorney that my mother could sign the POA even though she's at the point where she needs to move into assisted living.
So, we have the POA and I got a drs note stating that she is incapable of handling her financial affairs. That's what Merril Lynch required so that we could close her IRA and use the $ to help pay for her care.
I called today ML to check that they received and processed the POA. They say they can't honor the POA as it stands, that it was executed too close to the time that we tried to use it (just shy of 3 months).
Has this happened to anyone? ML says they will honor it if we get my mom's dr to send a letter stating she was capable of signing the POA earlier this year.
If we can't use the POA to help pay for her assisted living, this could be very bad for our family. I'm worried!
Are you in the US? If so, there is no time limit on a POA - it can be used the same day it's signed- and they often are. If anyone gives you a hard time about, have the attorney call them. They'll honor it then!
NO NO NO... once that POA is signed, and in NC official registered, it is usable. If your lawyer determined that your Mom was aware enough to know what she was signing that is all you need. We did run into problems with one insurance company but it only took one phone call from our lawyer to fix it.
So talk to the lawyer that executed the POA and have him contact the company. There is no way they can argue with his determination since they were not there. I don't like that company anyway! But that's another story
UH, nope I'm not buying the ML story either....they can't have it both ways...so if they won't honor the POA, figure out a way your mom can tell them to liquidate the account...a letter perhaps to the broker. Signed by her if she is capable and notorized perhaps..... There are ways around the brokerage houses. Definitly get the lawyer involved.
I have been very successful in handling my Mom and Dad's affairs for 4 years now without a court ordered conservatorship. The durable POA has handled anything on the local or state level and a simple statement of incapacity from the doctor was sufficient for the federal. I did have my name on her checking account and a specific POA with her broker. Amazingly the most difficult companies to work with... POWER companies. Getting a name changed on an account is more annoying than medicare, social security, the bank, and the broker combined!! The only other problem was one life insurance company that didn't want to talk to us about Dad's police even though they had the POA... but one call from the lawyer fixed that. They would send the benefits to the address we supplied when he died but we couldn't get them to change his address before he died. I was advised not to do the conservatorship here... but every state is different
We were also advised by the attorney to not get guardianship or conservatorship, although I wasn't at the meeting with the attorney when they advised us.
I called our attorney and we have a meeting by phone today. I plan on asking him to call ML.
The whole situation is extremely frustrating. Not that my story compares, but I work full time and have two small children at home. It's hard to find the time to make all these calls at work, to follow up on all these things. The amount of headaches in this process has been astounding. I've had to wrestle to get the POA, the NH won't accept an assignment of benefits from our LTC policy, so we have to pay out of pocket every month and then get the $ back from LTC. And that's all in the future. As of today, I can't even get the corporate offices of her NH to send me a bill, so I know the total is rising.
I am ready for things to get reasonably settled so I can get to our new "normal" here. I thought we'd be somewhat on the downhill once my mother was placed, but it seems the challenges have only increased.
Part of my frustration as well is that my father can't do any of this. Well, he could. He simply doesn't. He has let his children know that we need to handle his affairs, that he's not able (isn't going to, in other words). If I'd ever pulled anything like that as his child, he wouldn't have stood for it. Yet somehow it's ok for him to place all of his responsibilities on us.
Thanks for all the advice and for reading through to the end of my rant.
In a way you are lucky epb!! Try wrestling the financial responsibility out of the hands of a parent that doesn't WANT you to do it. That was where I started. Mom could do it, had always done it, and saw no reason why I would suggest that she couldn't do it. So rather than having it all, I was trying to do it around her. If Dad is willing to drop it in your lap... be happy.
Yes it is an annoyance, a lot of work, and a frustration especially in the beginning when you are trying to get everything set up. But once you get it all going it's ok. Mom has LTD insurance. We have to pay up front and then be reimbursed. Evidently that's the way it usually goes. I get a bill the first of the month, send a copy to LTD insurance company, pay the bill, and get a check back... repeat. It all settles into a routine. All the other bills I put on bank draft. That cuts me out of the loop except for balancing the check book.
You are working with the financial institution but also be sure that your POA is on file with all insurance companies and your Mom has given you permission to talk to all health insurance company. They are different since they are medical and take the medical POA or assignment of HIPPA.
And go to the social security office to completely the statement of incapacity. It is just a letter from the doctor that she can not handle her own financial affairs and not court ordered statement of incompetency. That way you can become her responsible party for social security and medicare. I did put both retirement income and social security on direct deposit into her account that has her name and my name on it. This is been so helpful down the road.
Things will settle down. I have been doing this for four years and it's now just part of my routine. I write a couple of checks, make a deposit or two, and balance the check book. I will forewarn you... keep accurate records. Don't co-mingle your money with her money. Save receipts. I pay everything with checks or debit card directly out of her account with receipts to back up the purchases. This way there is no question later as to where the money went. I went one step further and gave my sister access to the online banking. That way they can watch me if they want. There are very few instances where I reimburse myself. It's easier and more transparent to just get a debit card for her account and stay out of that gray area
So just know it does get easier once you get everything flipped over and moving along smoothly!! Right now it seems overwhelming but it will not be that way forever.
You definitely need to have the lawyer who handled the POA assist. ML is telling you that they have a reasonable belief that the POA is invalid (although how did they know about the doctor's opinion that she couldn't handle her financial affairs?). Once ML has a reasonable doubt as to its validity they have a legal obligation not to honor it without further information.
Because of the relatively close-timing of the doctor's opinion (which will carry more weight than the lawyer's opinion as to her medical condition), you might need a conservatorship to resolve her status. While no one can provide you with specific legal advice on the internet, this particular POA is potentially attackable because of the timing of the doctor's opinion. If the doctor will write an opinion that she was competent to sign the POA, the POA will be more defensible. Because of the timing though, anyone else might come forward with another doctor with another opinion as to her competency. If it's unlikely that anyone would actually try to attack the POA, this isn't much of a risk. If the family isn't in alignment on the decisions that will need to be made or there are enough assets to interest anyone else, then this might be a situation where a conservatorship would be safer than the POA.
The first year after DH's admission to the NH was very difficult, and I'm still copying and providing copies of his POA for everyone under the sun. The health care and other insurance companies have been the worst to deal with, and have made me provide a new copy of the POA each year -- sometimes on their own forms. It's a continuing responsiblity, but it does get easier with time.
Thanks, everyone. I did call the attorney and he called Merrill Lynch. ML is standing by their requirement for a note from my mother's doctor stating that she was mentally competent at the time the POA was signed. The attorney said that if ML doesn't budge, the next step is legal guardianship.
I'm not so keen on bearing the financially responsible party bit, as I was told today that the nursing home has me as the financially responsible party and that I am liable for all of my mother's bills. Without her IRA, we are paying out of pocket. And we have yet to receive a statement of what we have paid so far to the assisted living facility because they were being sent to my dad at an incomplete address. So, I'm in a holding pattern. I'm waiting to get the statements and bills from the nursing home, I'm waiting to hear from the attorney as to next steps, and I'm waiting to hear from the nursing home's corporate legal department to see if we can have a new contract that lists my father as the financially responsible party.
It's all such a giant mess. On the positive side, my siblings are going to help financially until we can get through this. Still, it keeps me up at night, affects my relationships with my children and spouse, basically just weighs on me. Please let this all get worked out soon! I'm doing the best I can and it seems like it's not good enough.
Thanks for the info on the SS. I'm guessing we will have to wait until we decide if we must have legal guardianship declared before I act on that.
One thing you do need to know... any state initiated legal procedure is useless when it comes to the federal government (Social Security, Medicare, Medicaid, and most Military Retirement). I thought I had all my bases covered until I ran into Uncle Sam. So whatever a state court does... makes no difference to the feds. But their procedure is relatively simple. Just wanted you to be aware.
Then ML is not saying that the POA was used too soon but they don't think she was competent when she signed it. They are questioning the integrity of you and the lawyer. There are also levels of competency. She may be able to sign a POA paper and understand it and not understand all the workings of her financial affairs.
Question... can your Mom sign the papers to withdraw the money? If they will not accept the POA... Just have Mom sign the withdrawal papers. Or take her by a ML office and let her tell them she wants her money out.
Also, if my understanding is correct, you are NOT responsible for paying your Mom's bills with your money. If you chose to anti up until her funds become available and then get reimbursement.. that is one thing. But you do not have to pay for her care out of your money. You need to pay all her bills out of her money... then when it runs out you give that accounting to Medicaid and they pick up from there. Please don't use your money without the adequate papers work to prove that it is a loan and then documentation when you reimburse yourself. Being the responsible party does not mean you have to pay the bills with YOUR money. It just means that you are the go to person to get Mom's bill's paid out her HER money.
I suspect your lawyer has warned you not to take her to withdraw money after the doctor said she's incompetent to manage her financial affairs. ML may also have put a freeze on the account since her competency was questioned.
The family needs to ensure that all funds are used for her care and needs to keep good financial records of all of her monies in & out. Keep in mind that Medicaid may also view payments made on her behalf as a gift if they aren't properly documented. I strongly recommend that the family sit down with the lawyer again and spend the money to get another hour or two of advice on how to handle things. It could save you thousands in the long run. You may be asked to tell the lawyer whether he or she is being asked to represent the family's interests (asset preservation for example), your father's interest in 1/2 of the marital estate up to the statutory maximum, or your Mother's interests. These interests are usually aligned, but not always.
While not providing legal advice, I do suggest that you look at the financial responsibility forms that you signed asap. They should have given you a copy! You might have contractually agreed to be financially responsible for your parent's care, or you may have only signed a form acknowledging that you would assist your parent with financial transactions. If you signed a financial responsibility form, you need to consult with your lawyer to determine whether it's enforceable in your state or not. A local hospital once slipped a financial responsiblity form into a pile of admission forms for my FIL, telling me that everything was just "standard" paperwork. I refused to sign that form since my FIL was responsible for his own debts, and the hospital backpedaled very quickly.
I did ask my attorney about taking my mother in to a local ML office to get her to sign the papers and withdraw the money. He advised against it, presumably because they already have legal reasons to "freeze" the account.
Regarding the Residency Agreement for my mother's care, it does read I must pay the community all amounts due if my mother is unable to pay. When I signed this, though, it was the day my mother was moving in, the person who normally goes over the paperwork wasn't there, and I swear I asked them if the forms I was signing were financially obligating me and was told no.
Still no word from either the assisted living community or ML legal depts.
You definitely need legal help to untangle this mess. Especially if deception was used to get you to sign those papers then I would definitely take action to revoke them.
I can understand the lawyer's recommendation on Mom withdrawing her money. Evidently they have decided that she is incompetent and was when she signed the POA. That is an argument between the lawyer that did the paper, the doctor, and ML. If her doctor willing to state she was competent at the time she signed the papers? I guess what bothers me is that POAs are used all the time for a variety of reasons. Pops gave Mom D a POA when he broke his neck. He was mentally capable of dealing with his own affairs but physically incapacitated. Overseas personnel use POAs all the time to let their spouse or children deal with their affairs. You Mom may understand enough to do what is necessary but would rather you do it. I guess I have a problem with ML questioning the lawyer's integrity, as well as yours, in denying the POA.
Hopefully you will get good news from both the AL and ML.... and hang on to your legal guidance