Elder Law Answers
Can My Mother's Agent Under a Power of Attorney Sell Her Belongings?
My mother's lawyer is her agent under a power of attorney....
Read moreCan My Mother Gift Her House to Me to Repay a Debt Without Jeopardizing Medicaid Benefits?
- June 2nd, 2015
Q
My mother has had financial issues for the past nine years. Over the course of that time, I have: loaned her money (that has yet to be repaid); provided for her room and board for a period of 18 months; and paid for services, supplies, and tools during the renovation of her house. She recently sold the house and purchased a condo. The original understanding was that the condo would be deeded to me to repay me for my expenditures on her behalf. After learning more about the Medicaid look-back, we're concerned that this may jeopardize this plan, as she is starting to get to an age when she could need extended care at any time. Could this repayment bypass the look-back considering it's to satisfy a debt instead of a being a gift?
A
This is a question of proof. While you and your mother characterize the financial transactions as a loan on your part and a repayment on hers, your state Medicaid agency is likely to view them as informal support by you and a transfer of assets by your mother, causing an ineligibility period of up to five years. The burden of proof will be on you and your mother. If you have any evidence of the financial arrangement, such as a promissory note or written agreement, this would greatly strengthen your case. An affidavit as to the facts by a sibling, if any, who is actually hurt by the house proceeds going to you, may also be helpful. In the absence of proof, you may want to make the transfer with the understanding that problems could arise if your mother needs care within the next five years, at which point you can (1) make the best case possible that the transfer was a repayment to you, (2) return the transferred funds to your mother, or (3) pay out of pocket for her care until the five years have passed. We strongly recommend that you consult with a local elder law attorney because treatment of this type of situation can vary from state to state. To find a directory of attorneys, click here.