Legal Question in Elder Law in Michigan

I live in Michigan. I am part of a limited liability corporation with 2 of my brothers. We own our father's home which we interited. One of my brothers has a serious brain injury and may be in a nursing home for a very long time and may have to apply for Medicaid. He just recently went through a divorce and has to sell his home as part of his divorce settlement. My injured brother has a daughter who is his power of attorney. If we have to apply for Medicaid for my brother to go to a nursing home, how can we protect the money he gets from the sale of the house. Do we need to purchase another home and should my other brother and I sell our part or all but 1 or 2% of our ownership in the LLC to himto protect his assets best? If we purchase another home for hime, is he protected also? Also, because this was an inheritance, what taxes will be have to pay after the sale of this house. Thanks for your advice.


Asked on 1/26/11, 9:09 am

1 Answer from Attorneys

Don Rosenberg Barron, Rosenberg, Mayoras & Mayoras, P. C.

Your question is really complex. The short answer is your brother or someone on his behalf could establish through a petition with the probate court a specific type of Special Needs trust call a disability payback trust or a d-4-a, PROVIDED your brother is under the age of 65. If this is not a viable option or you are not interested we could utilize a strategy call "half-a-loaf" this means he could gift 50-70% of the proceeds away and use his income and the portion not given away to pay for the cost of care during the penalty caused by the gift.

As for writing a treatise on the rest of your question, I would encourage you to consult an elder law and special needs attorney. I know you are in Westphalia which should not be an impediment to working with my self. Here is a little bit about myself and contact info. I also suggest you surf these two websites and look at the article section. www.thecenterforelderlaw.com and www.thecenterforspecialneedsplanning,com

Your situation is complicated, however, there are solutions that you will think that are too good to be true.

I have been practicing for over thirty years. My practice is limited to specializing in issues concerning disability, estate, long term care, nursing home, Medicaid and special needs planning. I am the Chairman of the Board of Directors of the Alzheimer’s Association - Greater Michigan Chapter and member of the Association's executive committee; Member of National Academy of Elder Law Attorneys and have been listed since 1991 in the Academy's Experience Registry. Also I am the immediate past Chair of the Governing Council of the Elder Law and Disability Rights Section of the State Bar of Michigan. I am also a Charter Member of the Academy of Special Needs Planners and Member of the Financial and Estate Planning Council of Metropolitan Detroit. I was recently selected again (having been previously selected for 2009) for the year 2010 as a "Superlawyer" which designates that I am in the top 5% of lawyers in the country in my field. I am also an accredited attorney with the US Department of Veterans. Finally, I was selected by Hour Detroit Magazine as 5 Star Wealth Manager in the area of estate planning etc... for last year and most recently 2011.

Don Rosenberg

[email protected]

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Answered on 1/27/11, 4:15 pm


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