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Elderlaw: 02/01/2012

Elderlaw Advocates

Dear Readers,

Remember to listen to Len Tillem on his new station, Newstalk 910 AM, from 3-4 p.m. each weekday.

Dear Len & Rosie,

Medi-Cal is seeking reimbursement from my dadís assets for my momís benefits. They are both deceased and I am executor of my fatherís will. I know nothing about how Medi-Cal was involved in paying for Momís time in the nursing home. His only asset, if it can be called that, is a mobile home that has been for sale. Since there are no buyers and we canít pay the space rent anymore we are thinking of giving it away to get rid of it.

I think from reading some of your columns at that the pay-on-death accounts, survivorís benefits from my dadís retirement, and his meager possessions are exempt. So with the mobile home not selling, can they attach anything else?


Dear Nancy,

The California Department of Health Care Services (DHCS) operates an estate recovery program to collect assets owned by deceased Medi-Cal recipients. The basic idea is that Medi-Cal gets paid back for what it spent on your mother, before you get to inherit whatís left, but it is more complicated than that.

Since your mother was married upon her death, the estate claim was deferred until your father died. The only assets subject to the DHCS claim are assets owned by your mother upon her death. Mom was in a nursing home, and that means she owned less than $2,000 in a bank account, and maybe she was on title to the mobile home with your father. This is important. If your mother owned half of the mobile home on her death, itís subject to the estate claim. But if she gave the mobile home to your father while she was still alive, then there shouldnít be any repayment to DHCS at all. You should examine the mobile homeís title document to see for yourself.

Your fatherís retirement benefits, if any, and the money he held in his bank accounts are not subject to the DHCS claim at all, unless it was actually your motherís money upon her death.

Since the mobile home doesnít seem to be worth anything, you could just leave it alone. You are not the executor of your fatherís estate, even though you are named as executor in his will. You become executor only if your fatherís will is admitted to probate in the Superior Court. You could simply tell DHCS that your father owned a mobile home, and if they want it they can go get it themselves. Itís important to understand that you do not have a legal duty to do Medi-Calís work for them, unless you have personally received assets subject to a Medi-Cal estate claim, or you are the executor of your fatherís estate in probate, or you are the trustee of his trust.

It is also important for other readers to remember that Nancyís potential solution of just walking away can work only because her father died with nothing of value. If Nancyís mother owned half of a valuable home when she died, Nancy would likely have to reimburse Medi-Cal for what it spent on her motherís care. If a family member is on Medi-Cal benefits, you should get sound legal advice about how to help that person shelter his or her assets from a DHCS Medi-Cal estate recovery claim.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at Len also answers legal questions each weekday, Noon-1 p.m. and Sundays, 4-7 p.m. on KGO Radio 810 AM.

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