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Son hopes father's prenup protects his inheritance

Q: As an only child, my father named me beneficiary of his profit-sharing plan at work after he and my mother divorced.

When he remarried, he insisted on a premarital agreement by which my stepmother gave up her rights to all assets that my father did not will to her. When he died unexpectedly, half of his property was willed to her and half to me; however, she is now claiming the profit-sharing plan even though I am still the beneficiary.

My lawyer — the same one who represented my father and prepared the premarital agreement — says "no way" because she gave up her rights before they married. There is quite a bit of money at stake.

Do I have anything to worry about?

A: You sure do. The benefit paid after the death of a married employee goes to the spouse in the form of a survivor annuity unless the spouse agrees in writing to the employee's election of another beneficiary.

Since the premarital agreement was signed before the marriage and therefore before she became a spouse, your stepmother had no rights to waive. These waivers must be signed after the premarital agreement and marriage.

Bottom line: She is probably entitled to the profit-sharing plan. Given the complexities involved in employee benefits, either research or getting an opinion from an expert in the field would have been wise.

In our opinion, you should revisit this question with your lawyer.

Nursing home errs in trying to discharge man

Q: My mother's last illness — she died two years ago — left my father almost destitute. Aside from Social Security and a small pension (totaling less than $800 per month), he has his house and little more.

Early this year, at age 87, my father fell and broke his hip. After being hospitalized for surgery, he was discharged to a nursing home for rehabilitation, which did not go well at all.

He is still unable to walk, get out of bed, go to the bathroom, etc., and his doctor says that he has reached maximum improvement.

His nursing home care was paid for by Medicare and, since he had a Medigap policy, there were no charges for him during his stay in the nursing home.

But after 85 days into his stay, the nursing home staff told my brother and me that they could not do anything more for my father and would have to discharge him unless we could pay $6,700 per month to keep him there as a private-pay patient.

When we told them that he had been approved for Medicaid, the nursing home told us that they did not have a Medicaid bed and that we could either pay privately or take him home.

His doctor says that he needs to be watched around the clock, an expense that he — and we — cannot afford.

What can we do to make sure our father gets the care he needs?

A: Under the facts as you state them, the nursing home cannot discharge your father, and you need to hire an experienced elder law attorney.

The actions threatened by the facility violate federal and state regulations which provide, in pertinent part, that the facility can not transfer or discharge your father unless (a) the facility cannot meet your father's needs, which is clearly not the case; (b) your father's health has improved to the extent that he no longer needs long-term care, which is clearly not the case; or (c) your father has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) his stay at the facility, which is clearly not the case.

As the facility knows, conversion to Medicaid does not allow them to discharge your father.

In addition, before transferring or discharging a resident, the facility must (a) give 30 days' notice to the resident and family member of the proposed transfer or discharge, (b) state in writing the reason(s) for the discharge, the date of the discharge and the location of the place to which the resident is to be transferred or discharged; and (c) state that the resident has the right to appeal to the state agency that administers the Medicaid Program in your state.

The names/designations of the agencies vary from state to state.

By telling you and your brother that your father could stay if you and he guarantee that you will pay the private pay rate, the facility has again breached the federal and state guidelines in that a facility cannot require a third-party guarantee of payment to the facility as a condition of admission, expedited admission or continued stay in the facility.

If your father is qualified for Medicaid, the facility cannot charge, solicit, accept or receive — in addition to any amount otherwise required to be paid under the state plan — any gift, money, donation or other consideration as a precondition of admission, expedited admission or continued stay in the facility.

It is unfortunate that nursing facilities accept patients, take Medicare or private pay, and then try to discharge the patients when they run out of money — but it happens.

Jan Warner is a member of the National Academy of Elder Law Attorneys and has been practicing law for more than 30 years. Jan Collins is editor of the Business and Economic Review published by the University of South Carolina and a special correspondent for The Economist. You can learn more information about elder care law and write to the authors on www.nextsteps.net.

Son hopes father's prenup protects his inheritance 04/27/09 [Last modified: Monday, April 27, 2009 4:30am]
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