My wife is going in a nursing home. Do I have to divorce her so we don't lose everything?

Not a fun topic, but a question that comes up frequently.  I'm sorry that you're going through such a tough time.  If it is a long term marriage, the answer is probably not, since the outcome may be better to stay together.  Alabama Medicaid requires that the divorce be equitable in this case, so it would simply result in a property division, with the nursing home spouse having to spend theirs on the nursing home.  In most cases, the long term couple will be better off following rules for couples.  The spouse at home (community spouse) can keep all of their income or, if the spouse in the nursing home (institutionalized spouse) has the higher income and the community spouse has much less, often a portion of the institutionalized spouse's income is diverted to the community spouse each month, up to a certain amount.  The community spouse can keep the home, and should have the institutionalized spouse's portion transferred to himself in this case.  The community spouse can also keep at least $25,000.00 in assets.  If the assets are more than $50,000.00, but less than $219,020.00, then those assets are split, with one half paid for nursing home care, and the community spouse retaining the other half. 

For those in a second or later in life short term marriage, if the community spouse brought in an overwhelmingly larger amount of assets to the marriage, then divorce might be an option to preserve them.  All people contemplating a later in life marriage should have a prenuptial agreement in place for this very reason. 

I hope you don't have to go this route, but its certainly something older couples should think about ahead of time, and do some disability planning to avoid an emotionally upsetting and expensive venture into domestic court.  Call an elder law attorney in your area to see how your state handles this issue, and keep in mind that many states will have different laws and rules governing these problems, but community property states will handle this issue quite differently.   Go here to find your local Area Agency on Aging, who should be able to get you in touch with an experienced elder law attorney.

Good luck and thank you for your question! 

My mother has been diagnosed with Alzheimer's disease and the doctor says we need to get a power of attorney. How can we do that? Will it make me responsible for her bills?

Thanks for your question and I'm sorry to hear of your mother's diagnosis.  I'm not sure from your question what your mother's present state of mind is -- whether or not she would be competent to sign a power of attorney.  I would get your doctor to state in writing his opinion about her competence right away.  If she is not competent, or for whatever reason she will not sign a power of attorney, then you may need to go to court to get a guardianship established.

A durable power of attorney would give you the ability to handle your mother's affairs for her, such as paying bills, obtaining documentation from her bank or pension company, or sign documents such as a deed, mortgage, tax return or other paper that requires her signature.  It is "durable" because it will still be valid if she loses competency at a later date.  To answer your last question, no, you are not responsible for bills personally that you sign for using your mother's power of attorney.  In fact, the power of attorney would prevent you from having to possibly be a guarantor at an assisted living facility or independent living home, etc., since you are signing her name.

To obtain a power of attorney, call an attorney, preferably one who specializes in handling senior issues, or at least someone who handles wills and trusts, as they should be knowledgeable about your state's laws regarding the language required for the durable power of attorney.  A good resource is your local Area Agency on Aging, who should have a contract with a local elder law attorney who can provide a durable power of attorney for free.  If you are unsure who to call, you can go to this website to find area agencies on aging.

Thanks for your question!  I hope this helps.

Welcome to Ask the Elder Lawyer!

Welcome to Ask the Elder Lawyer!  I've been practicing law for 17 years and focus exclusively on issues affecting seniors.  As the population is aging, there is more need and less resources.  I hope you will use this as a free resource to answer your questions and, hopefully, give you some direction.  Please submit all questions by email and label them:  QUESTIONS FOR ASK ELDER LAWYER.  I will be posting answers as I can.  Important!  I will not publish any names or other personally identifying information with your question, however, if you wish for me to answer this question privately, please state your request in the email.

Some areas of concern I find are surrounding what happens when your parents or spouse becomes ill and needs nursing home care.  Will the house be lost?  What about income?  How will I pay my bills? 

I also get a lot of questions about probate and guardianship, durable powers of attorney, living wills or advanced health care directives, wills, living trusts, special needs trusts, social security issues, medicare issues, and a whole host of related questions.

I look forward to helping you soon!