[WSBAPT] POA question

[David Faber]

All:

Following up on the discussion from last week and looking over my client's
situation in light of WAC 182-513-1363(4)(f), I am fairly confident my
client can meet the strictures of subsections (i, )(ii), (iv), (vi), and
(vii), but I have lingering questions about how to ensure that we meet the
requirements of (iii) and (v).

(1) To meet the requirements of 182-513-1363(4)(f)(iii), I have found
WAC 388-106-0355,
which appears to provide guidance for what is allowed for nursing care. Is
the assistance described under WAC 388-106-0355 coterminous with the
assistance that can be provided under 182-513-1363(4)(f) or is there
another resource that would help a person know what they can and cannot pay
a family member to do without disqualifying from medicaid eligibility once
funds are gone?

(2) Relatedly, if my client is going to pay a family member for home care
of the sort allowed under 388-106-0355, would my client need to have a
nurse diagnose her self-care abilities *a la* WAC 388-106-0355 to meet the
strictures of WAC 182-513-1363(4)(f)? Does the nurse have to meet any
particular criteria (i.e. does the nurse have to carry some specific
credentials or can it be any nurse)?

(3) If my client is paying a family member for home care, can they pay the
family member a daily payment at the average daily rate for nursing
facilities in Washington State or is there some other guideline for paying
a family member under WAC 182-513-1363(4)(f)(v)?

Any further guidance would be much appreciated.

Best,
David J. Faber
Faber Feinson PLLC
210 Polk Street, Suite 1
Port Townsend, WA 98368
(360) 379-4110

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On Wed, Sep 27, 2017 at 6:01 PM, Jane Bitz <jbitz at whc-attorneys.com> wrote:

> Its interpreted as a single day’s average daily private nursing rate in
> each month. DSHS releases a new Key Medicaid Standards chart January 1,
> April 1 and October 1 each year. (Different standards are updated at
> different times of the year.)  I just found the rate starting October 1,
> 2017 as $313 per day.
>
>
>
> Gifts of $313 per month or less are considered de minimis  gifts that will
> not generate a period of ineligibility.
>
>
>
> Columbia Legal Services publishes a handy desk reference that will be
> posted to the listserv when available after October 1.
>
>
>
> Jane Bitz.
>
>
>
> Jane G Bitz
>
> Of Counsel
>
> Wolff, Hislop & Crockett, PLLC
>
> 12209 E Mission, Suite 5
>
> Spokane Valley WA 99206-4824
>
> (509) 927-9700; FAX (509) 777-1800
>
> jbitz at whc-attorneys.com <jane at jbitzlaw.com>
>
>
>
>
>
>
>
>
>
> *From:* wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.
> wsbarppt.com] *On Behalf Of *David Faber
> *Sent:* Wednesday, September 27, 2017 5:28 PM
> *To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
>
> *Subject:* Re: [WSBAPT] POA question
>
>
>
> Marcus,
>
>
> I'm curious about how you read WAC 182-513-1363(4)(a): "*The agency or
> its designee does not apply a period of ineligibility for uncompensated
> value if (a) the total of all transfers in a month does not exceed the
> average daily private nursing facility rate in that month*". I'm seeing
> "average daily private nursing facility rates" in the low $200s on the DSHS
> website, so do you read subsection (a) to mean that if transfers for the
> whole month are less than the total of ~$200 then there would be no period
> of ineligibility, or do you read it to mean that as long as the monthly
> transfers are less than ~$6,000 a month (30-day month at $200 a day), then
> there would be no period of ineligibility and we could skirt the conditions
> under subsection (f)? I'm 99% certain my client meets the conditions of
> subsection (f), but it would be much easier and cheaper to utilize (a) if
> possible.
>
>
>
> Thank you again.
>
>
> Best,
>
> David J. Faber
>
> Faber Feinson PLLC
>
> 210 Polk Street, Suite 1
>
> Port Townsend, WA 98368
> (360) 379-4110
>
>
>
> *** NOTICE: ATTORNEY CLIENT COMMUNICATION - PRIVILEGED & CONFIDENTIAL.
> This communication may contain privileged or other confidential
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>
>
> On Wed, Sep 27, 2017 at 5:04 PM, David Faber <david at faberfeinson.com>
> wrote:
>
> Very helpful information. Thank you Marcus. I was unaware of the WAC on
> family caregivers and will review that carefully.
>
>
> Best,
>
> David J. Faber
>
> Faber Feinson PLLC
>
> 210 Polk Street, Suite 1
>
> Port Townsend, WA 98368
> (360) 379-4110
>
>
>
> *** NOTICE: ATTORNEY CLIENT COMMUNICATION - PRIVILEGED & CONFIDENTIAL.
> This communication may contain privileged or other confidential
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>
>
>
> On Wed, Sep 27, 2017 at 1:12 PM, Marcus Fry <mfry at lyon-law.com> wrote:
>
> David:
>
> The tax ID doesn’t necessarily mean it is revocable.  In fact, because
> both Trustors were also the beneficiaries then it likely was taxed as a
> grantor trust with one or both of their SSNs.  It is possible that a tax id
> should now be obtained if grantor status has been lost, but it is likely
> still a grantor trust.  It depends on the terms of the now irrevocable
> trust.
>
>
>
> Your client is mom, correct?  Is daughter POA for mom?  I would suggest
> filing under the POA statute for approval of the care contract if in fact
> daughter is POA and your client as the principal requesting approval with
> notice to step kids.  TEDRA definitely works instead of a petition to the
> court for approval of arrangement if you can get it from family.  But I
> think you need to do one of these options to avoid a VAPO/APS complaint in
> the future, particularly if you client becomes mentally incapacitated and
> daughter assumes role as trustee and continues to pay for caregiving
> services out of the trust.
>
>
>
> Because your client is mom, then the payments to the daughter should be as
> employee and appropriate withholdings need to be performed.  If daughter
> gets injured in caring for mom, you don’t want your client’s assets in
> trust (the trust would be the employer because those assets are being used)
> exposed to a L&I claim.
>
>
>
> Also, for Medicaid purposes you need to follow the WAC on paying for a
> family caregiver (See WAC 182-513-1363(4)).
>
>
>
> My $.02
>
>
>
> Marcus J. Fry
>
> Lyon, Weigand & Gustafson, P.S.
> P.O. Box 1689
> Yakima, Washington  98907
> Telephone:  (509) 248-7220
> Facsimile:  (509) 575-1883
>
>
>
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>
> *From:* wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.
> wsbarppt.com] *On Behalf Of *David Faber
> *Sent:* Wednesday, September 27, 2017 12:22 PM
> *To:* WSBA Probate & Trust Listserv
> *Subject:* Re: [WSBAPT] POA question
>
>
>
> I'm dealing with a similar issue right now and figure it's better to
> continue this old thread rather than start a new one, but the issues here
> are a bit more complex. Hopefully someone can help me address the issues
> present:
>
>
>
> (1) Mom is the surviving trustor on a trust that impliedly became
> irrevocable on her husband's passing (the Trust only provides for power to
> revoke during the joint lifetimes of the Trustors). The only asset of the
> trust is $180k in cash held in a checking account (screwy, yes, but thems
> the reality of the situation). The Trust does not currently have a tax ID
> number, so presumably the bank considers it revocable still, if that is
> relevant to any potential avenues in addressing this situation...
>
>
>
> (2) The marriage was a blended family and there are step-children involved.
>
>
>
> (3) Mom is aged and wheelchair bound. She lives with daughter, who is
> named to become co-trustee with one step-child upon mom being rendered
> incompetent or upon death. Mom is still legally competent to act, however,
> and is still serving as trustee.
>
>
>
> (4) Mom wants to pay daughter for room and board (including home care,
> because daughter quit her job to help mom).
>
>
>
> (5) Mom and daughter are both concerned that mom will eventually require
> Medicaid, and so the five-year lookback is weighing heavily on this
> situation.
>
>
>
> As I see it, there are a slew of complexities here that really orbit
> around two situations (1) how to safely make payments to daughter and (2)
> how to do it in such a way as to not disqualify mom from medicaid when her
> assets have been consumed. Here's where I'm at right now:
>
>
>
> (A) If mom pays daughter, step-siblings may cry foul, so I am thinking
> that a TEDRA Agreement might be the best option to establish an agreement
> between family members for payment to daughter laying out exactly how much
> daughter is going to be paid from the Trust.
>
>
>
> (B) That gets into a question about whether such payments would then be
> classified as payments to an employee of the Trust/Mom? And what about
> income taxes/social security/medicare contributions for Daughter? My
> thought is we could 1099 the Daughter and she would just have to report the
> earnings on her tax return, correct? Anything that we could reasonably
> exclude?
>
>
>
> (C) Provided we can get over the potential family stumbling blocks and get
> a TEDRA Agreement in place, and the tax questions can be settled
> effectively, we have the Medicaid question. Is there a method of ensuring
> that these payments to Daughter would not be seen by Medicaid as a gift or
> otherwise as a disqualifying event? Do you think having a rental agreement
> and some sort of 1099 paper trail would be enough?
>
>
>
> Any and all thoughts are much appreciated, including noting things that
> I'm potentially missing.
>
>
> Best,
>
> David J. Faber
>
> Faber Feinson PLLC
>
> 210 Polk Street, Suite 1
>
> Port Townsend, WA 98368
> (360) 379-4110
>
>
>
> *** NOTICE: ATTORNEY CLIENT COMMUNICATION - PRIVILEGED & CONFIDENTIAL.
> This communication may contain privileged or other confidential
> information. If you are not the intended recipient, or believe that
> you have received this communication in error, please do not print,
> copy, retransmit, disseminate, or otherwise use the information. Also,
> please indicate to the sender that you have received this communication in
> error, and destroy the copy you received.***
>
>
>
> On Thu, Apr 7, 2016 at 11:09 AM, Sarah Jael Dion <sarah at dionlaw.com>
> wrote:
>
> Thanks all- I appreciate everyone's insight on this!
>
>
>
> Sarah Dion
>
>
> On Apr 7, 2016, at 9:33 AM, Marcus Fry <mfry at lyon-law.com> wrote:
>
> I wouldn’t bother with TEDRA.  RCW 11.94 has a mechanism and so do the new
> POA Act to obtain court approval of the proposed act.  I would definitely
> get court approval unless the POA has an alternate POA, then the current
> POA could decline to act with regard to the particular transaction, i.e.,
> negotiation and execution of room and board agreement, and the alternate
> POA could sign the agreement.
>
>
>
> Marcus J. Fry
>
> Lyon, Weigand & Gustafson, P.S.
> Adoption Attorney*
>
> P.O. Box 1689
> Yakima, Washington  98907
> Telephone:  (509) 248-7220
> Facsimile:  (509) 575-1883
>
>
>
> *NOTICES:*
>
>  *Adoption Attorney reflects election as a Fellow of the American Academy
> of Adoption Attorneys, an invitation based organization of 300+ attorneys
> nationwide, under its criteria of experience, ethics and peer
> recommendation. Washington's Supreme Court has not yet developed or
> recognized a credentialing process for specialties, and
> certification/fellowship is not required to practice law in this state.
>
> *Confidentiality: *This e-mail transmission may contain information which
> is protected by attorney-client, work product and/or other privileges.  If
> you are not the intended recipient, you are hereby notified that any
> disclosure, or taking of any action in reliance on the contents, is
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> please contact us immediately and return the e-mail to us by choosing Reply
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>
> *From:* wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.
> wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>] *On Behalf Of *George
> Edensword-Breck
> *Sent:* Thursday, April 07, 2016 8:57 AM
> *To:* WSBA Probate & Trust Listserv
> *Subject:* Re: [WSBAPT] POA question
>
>
>
> You don’t indicate what other relatives are in the picture, but whether
> there are any or not, this seems like a good TEDRA action situation..
>
>
>
> *From:* wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.
> wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>] *On Behalf Of *Sarah
> Jael Dion
> *Sent:* Wednesday, April 06, 2016 2:32 PM
> *To:* WSBA Probate & Trust Listserv
> *Subject:* [WSBAPT] POA question
>
>
>
> Hello-
>
>
>
> Looking for practical, as well as legal, input on a situation.
>
>
>
> Acquaintance is POA for her incompetent stepfather. Acquaintance is moving
> into a larger home, which has extra room, and would like to move her
> stepfather in so he can be in closer contact with the family. She plans to
> charge him rent, but is nervous about doing so, because she would be
> writing the rent checks to herself.
>
>
>
> It seems to me that this must come up routinely- although it hasn’t with
> any of my clients. Can a family member who is the agent ethically charge
> rent to the person for whom she is the fiduciary? If so, what precautions
> are best taken?
>
>
>
> I’d appreciate any thoughts!
>
>
>
> Sarah Jael Dion
>
>
>
> Dion Law PLLC
>
> 206-550-4005 <(206)%20550-4005>
>
> sarah at dionlaw.com
>
> dionlaw.com
>
>
>
> This message is private or privileged. If you are not the person for whom
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