Our busy elder law practice receives all kinds of questions from seniors, adult children, industry professionals and caregivers throughout the year.  Here is a sampling of the most common questions we answer daily.

1. My mother moved to Georgia from another state in 2014, is her will still valid?


Probably, but it makes sense to schedule an appointment with a Certified Elder Law Attorney (CELA) in the state of Georgia to determine if the current documents comply with Georgia statutes as the laws regarding Wills, Trusts and other estate planning documents vary from state to state to state. In addition, any important legal document should be reviewed and updated at least every ten years or when there is a change in your circumstances (death, marriage, birth, divorce, change in state of residence, etc.)

2. My father served in the Korean War and really needs to be in an assisted living facility. Can he apply for the VA Aid and Attendance benefit prior to moving into the facility?


In order to meet the income requirements for maximum benefit for Aid & Attendance, the applicant must have recurring monthly unreimbursed medical expenses that exceed their monthly income. In simpler terms, you have to be spending more for your care than you receive in income prior to applying for the benefit. This may be met through home care expenses, assisted living community fees and skilled nursing facility fees.


3. I am applying for Nursing Home Medicaid for my husband and I am afraid I will lose my home?


Relax, your husband can transfer the home to you and remove it from consideration of estate recovery.

4. Do I have to Probate my mother’s will?

Probate is necessary if there are assets in the estate that do not have a joint owner or a paid on death beneficiary. For Example:  If your mother owned her house and it was titled in her name alone then you would need to probate her will to be able to pass title.

5. They said my father makes to much money to receive nursing home Medicaid. He only earns $2500 per month; how can that be?


In 2019, if your income exceeds $2,313 per month, a Qualified Income Trust also called a Miller Trust must be established in order to qualify for Medicaid. Once that QIT is in place and properly funded, you may proceed with a Medicaid application.


6. Will all of my spouse’s income go to the nursing home if he applies for Medicaid? What will I have to live on?


Yes, all of the Medicaid recipient’s income less deductions for medical insurance will go to the nursing home where they reside. As the community spouse, you are eligible for the Monthly Maintenance Needs Allowance (MMNA). In 2019 the maximum allowance is $3,160.50. For example, if your income is $1200 per month you will receive income diversion of $1,960.50 per month to reach the MMNA. If your income is over $3,160.50, you will receive no income diversion. Keep in mind that the Community Spouse is allowed to maintain up to $126,420 of the couple’s countable resources. It is not necessary to deplete your life savings down to $2,000.00 in order for your spouse to become eligible for Medicaid.


7. Do I need a Guardianship if I have Power of Attorney?


A General Durable Power of Attorney will allow you to manage someone’s financial matters but it does not give you the ability to determine their domicile or handle their medical needs.  An Advance Directive for Healthcare will help you to handle their medical issues but the only way to determine someone’s domicile (permission to move them from where they are without their permission) is a guardianship.

8. Will Medicaid pay for an assisted living facility?


No, in the State of Georgia, Medicaid can only be utilized for a skilled nursing facility. Medicaid will pay for some smaller personal care homes – often facilities with 3-5 beds.  The Coalition of Advocates for Georgia’s Elderly and the Georgia Council on Aging have been lobbying our legislators for Medicaid Funded Assisted Living; you can read more here.


9. Is my mother competent to sign a Power of Attorney even if she has Alzheimer’s disease?


Alzheimer’s disease by nature is progressive and depending on where your mother is on the diseases continuum, will determine whether she has capacity to execute a Power of Attorney. If mom is already under a guardianship/conservatorship, then she can no longer execute a Power of Attorney.

10. If I complete a Power of Attorney for Financial matters do I give up control of my money?

No you do not! What it does mean is that you give the person who you appoint as your attorney-in-fact the ability to access funds without your permission.