I'm with Alva. I don't really understand what the situation is, and what you're trying to accomplish.
But first, regardless of how good a friend is, that's not a basis on which to determine to create a trust. And depending on a lot of other issues, there are different kinds of trusts that can be created, as well as a plethora of provisions.
It's also unclear to me if you're differentiating between a trust and powers of attorney.
A Wisconsin attorney with a trust practice should advise whether or not the move requires updating of a trust. (I'm assuming the trust is not irrevocable?)
I think what you might want to do is ensure that you understand the difference between powers of attorney and a trust, which raises another issue. Has the trust been "funded"? If assets haven't been retitled in the name of the Trust, it's literally empty. Typically, a house is reconveyed from the individual owners to the Trust, and sometimes a Bill of Sale is used to provide a general conveyance of all personal items into the Trust.
And typically, you have to create a new checking account in the name of the Trust for any monetary assets to be deposited (SS, dividends, etc.). Title to the house would also be transferred and renamed as a Trust asset.
Overall though, I think that trusts are complicated, confusing, and only qualified and experienced attorneys in that practice area should be providing advice. It wouldn't even hurt to see a few as different attorneys approach trusts in different ways, especially when the assets are nominal or significant.
Please don't feel though that you're being criticized. My first law firm position was with a firm which had an EP practice, and over the years I worked for other EP firm, including the one which prepared my sister's and father's trust documents. I still don't understand all the issues, but then I didn't go to law school.
ClubieSandwich here: Sorry about being so vague. I'm new to the group and just trying to put the question out there. Thank you for your responses. My parents currently have a trust but because they have moved to Wisconsin, it needs to be updated. So now is a good time to update. I am listed as POA only if both are "incompetent" - They are each other's POA if need be. I now understand that it doesn't make sense to change the trust to my name. It needs to remain in theirs. Thank you for your insight on that. A friend has done this and it sparked curiosity. Now I understand thanks to you all. I do think it makes sense to add myself as POA since they have asked me to pay bills, etc. I really appreciate any advice. -- So Medicaid kicks in when all personal $ of theirs is gone? Hoping we never get to that point.
I'm not sure their trust has to be updated just because they moved to a different state: maybe reviewed in some way since some laws and rules can differ by state. Make sure a CELA (certified elder law attorney) reviews it.
Regarding PoA: not sure how old your parents currently are, but IMO it makes no sense for elders to have each other as PoA since it can be a demanding responsibility and a younger person would be a wiser choice. I have my son as PoA, not my husband, for this reason. I also have him as DPoA so that there is as little difficulty in transitioning responsibility as possible. Sometimes when elders develop dementia they become paranoid and resistant, so good luck trying to get them in for a cognitive exam (or 2, which some springing PoAs require).
Requiring Medicaid is not a bad thing if the planning has been done and people are knowledgeable about what will happen: it is important that your parents' funds are spent for their care first and foremost. If they require facility care, they should be transitioned into as fine a one as possible, that accepts Medicaid and has a continuum of care (IL to AL to MC to LTC to hospice). The residents that are in the facility get "first dibs" on Medicaid beds (since many cities have long waiting lists for "outsiders"). With Medicaid and staying in their same facility, they will receive the same care, same everything except they may have to share a room. My MIL went into a facility on Medicaid, had shared rooms but is now in a private room for over a year.
Lea is right; you need to see an attorney about this and not rely on any Forum or opinions. I don't fully understand what you are saying at all. Your parents either have a Trust they have created or they do not. If they remain competent they can make a Trust or update a Trust, or even appoint you as Trustee, giving you control and management of the Trust for them, and make you POA for all assets not held in Trust. If they are incompetent they cannot. Your parents have likely, if they have made a Trust, already appointed you as successor trustee, to take over the Trust if they fall incompetent according to the language of the Trust. Or, if your parents fear they may fall incompetent soon they may wish to appoint you now. Take for instance my brothers case: He was diagnosed with "early probably Lewy's Dementia" and asked me to take over his Trust, his estate, his bills and bill paying, IRS, etc. and to leave him only a small account for personal items. So please see an attorney to get the basic knowledge. Read books. Research on the internet. See a Trust and Estate lawyer with your parents and their current paperwork. Then work out exactly what you want for your parents and you are willing to/capable of doing for them. You say something about "5 year payback" and I have no idea what you mean by that either. UNLESS you are speaking of an Irrevocable Trust, meant to hide your parents assets so that they can ask medicaid and the taxpayer to pay for their care while their assets are hidden in an irrevocable trust, and passed to you on their death. To my mind they are always a mistake. The must be done WELL before 5 years if parents think to hide their assets and go to the Government for help. I am sure that isn't your intention, so I will leave that for your attorney to explain as well. These Irrevocable Trusts take all the assets out of the parents control and name essentially, passing it into a trust to go to their children while the parents "go on the dole" and ask money from the government for their care. The care the government provides is subminimal often. And the parent cannot ever again access their assets for decent care. BIG MISTAKE in my book. But that's me. So will leave you with, speak with parents, see attorney together, and on you go.
There are some trusts that are allowed by Medicaid -- which is what I assume you're talking about when you say 5-year look-back. I have limited experience with two of them: an irrevocable living trust and a Miller Trust.
The irrevocable living trust that my grandmother set up to take care of my father's living expenses while he is alive still allows him to qualify for Medicaid and assistance from other US programs like SSI. My grandmother's trust is not considered an asset for him because it's not in his name and he can't cash it out. My dad's situation is unusual but I thought it was worth a mention because even though the trust was more than Medicaid limits for assets, it's not counted as *his* asset.
The much more common Medicaid-allowed trust is a Miller Trust. The cap varies by state. Prepaying burial expenses is an option allowed by Medicaid, too.
You need legal advice here but I threw out some things I know a little about from experience. You can learn more online about spend downs, qualifying income amounts, how look-back works, etc., but paying for expert legal advice for your parents' situation is well worth it.
*I don't think the two are mutually exclusive -- a trust in someone else's name and their parent's/child's care -- as happened in my dad's situation. My dad has never been able to provide for himself, so my grandmother did what she thought was best. It so happens that Medicaid doesn't count that as his asset. I would understand if they did, but it just doesn't seem to be the case after meeting with multiple attorneys about this issue. But anything more than a Miller Trust that's set up or transferred now for parents' care, in someone else's name, would be too late and cause more problems than it's worth, besides the ethical issues.
**I'm confused, so bowing out. lol Who's funding this hypothetical trust? OP, you can put in your own money and arrange for that to pay for parents' care, like my grandmother did for my dad. It can't be funded with your parents' money.
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But first, regardless of how good a friend is, that's not a basis on which to determine to create a trust. And depending on a lot of other issues, there are different kinds of trusts that can be created, as well as a plethora of provisions.
It's also unclear to me if you're differentiating between a trust and powers of attorney.
A Wisconsin attorney with a trust practice should advise whether or not the move requires updating of a trust. (I'm assuming the trust is not irrevocable?)
I think what you might want to do is ensure that you understand the difference between powers of attorney and a trust, which raises another issue. Has the trust been "funded"? If assets haven't been retitled in the name of the Trust, it's literally empty. Typically, a house is reconveyed from the individual owners to the Trust, and sometimes a Bill of Sale is used to provide a general conveyance of all personal items into the Trust.
And typically, you have to create a new checking account in the name of the Trust for any monetary assets to be deposited (SS, dividends, etc.). Title to the house would also be transferred and renamed as a Trust asset.
Overall though, I think that trusts are complicated, confusing, and only qualified and experienced attorneys in that practice area should be providing advice. It wouldn't even hurt to see a few as different attorneys approach trusts in different ways, especially when the assets are nominal or significant.
Please don't feel though that you're being criticized. My first law firm position was with a firm which had an EP practice, and over the years I worked for other EP firm, including the one which prepared my sister's and father's trust documents. I still don't understand all the issues, but then I didn't go to law school.
Regarding PoA: not sure how old your parents currently are, but IMO it makes no sense for elders to have each other as PoA since it can be a demanding responsibility and a younger person would be a wiser choice. I have my son as PoA, not my husband, for this reason. I also have him as DPoA so that there is as little difficulty in transitioning responsibility as possible. Sometimes when elders develop dementia they become paranoid and resistant, so good luck trying to get them in for a cognitive exam (or 2, which some springing PoAs require).
Requiring Medicaid is not a bad thing if the planning has been done and people are knowledgeable about what will happen: it is important that your parents' funds are spent for their care first and foremost. If they require facility care, they should be transitioned into as fine a one as possible, that accepts Medicaid and has a continuum of care (IL to AL to MC to LTC to hospice). The residents that are in the facility get "first dibs" on Medicaid beds (since many cities have long waiting lists for "outsiders"). With Medicaid and staying in their same facility, they will receive the same care, same everything except they may have to share a room. My MIL went into a facility on Medicaid, had shared rooms but is now in a private room for over a year.
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I don't fully understand what you are saying at all.
Your parents either have a Trust they have created or they do not.
If they remain competent they can make a Trust or update a Trust, or even appoint you as Trustee, giving you control and management of the Trust for them, and make you POA for all assets not held in Trust.
If they are incompetent they cannot.
Your parents have likely, if they have made a Trust, already appointed you as successor trustee, to take over the Trust if they fall incompetent according to the language of the Trust. Or, if your parents fear they may fall incompetent soon they may wish to appoint you now. Take for instance my brothers case: He was diagnosed with "early probably Lewy's Dementia" and asked me to take over his Trust, his estate, his bills and bill paying, IRS, etc. and to leave him only a small account for personal items.
So please see an attorney to get the basic knowledge. Read books. Research on the internet. See a Trust and Estate lawyer with your parents and their current paperwork. Then work out exactly what you want for your parents and you are willing to/capable of doing for them.
You say something about "5 year payback" and I have no idea what you mean by that either. UNLESS you are speaking of an Irrevocable Trust, meant to hide your parents assets so that they can ask medicaid and the taxpayer to pay for their care while their assets are hidden in an irrevocable trust, and passed to you on their death. To my mind they are always a mistake. The must be done WELL before 5 years if parents think to hide their assets and go to the Government for help. I am sure that isn't your intention, so I will leave that for your attorney to explain as well. These Irrevocable Trusts take all the assets out of the parents control and name essentially, passing it into a trust to go to their children while the parents "go on the dole" and ask money from the government for their care. The care the government provides is subminimal often. And the parent cannot ever again access their assets for decent care. BIG MISTAKE in my book. But that's me.
So will leave you with, speak with parents, see attorney together, and on you go.
The irrevocable living trust that my grandmother set up to take care of my father's living expenses while he is alive still allows him to qualify for Medicaid and assistance from other US programs like SSI. My grandmother's trust is not considered an asset for him because it's not in his name and he can't cash it out. My dad's situation is unusual but I thought it was worth a mention because even though the trust was more than Medicaid limits for assets, it's not counted as *his* asset.
The much more common Medicaid-allowed trust is a Miller Trust. The cap varies by state. Prepaying burial expenses is an option allowed by Medicaid, too.
You need legal advice here but I threw out some things I know a little about from experience. You can learn more online about spend downs, qualifying income amounts, how look-back works, etc., but paying for expert legal advice for your parents' situation is well worth it.
*I don't think the two are mutually exclusive -- a trust in someone else's name and their parent's/child's care -- as happened in my dad's situation. My dad has never been able to provide for himself, so my grandmother did what she thought was best. It so happens that Medicaid doesn't count that as his asset. I would understand if they did, but it just doesn't seem to be the case after meeting with multiple attorneys about this issue. But anything more than a Miller Trust that's set up or transferred now for parents' care, in someone else's name, would be too late and cause more problems than it's worth, besides the ethical issues.
**I'm confused, so bowing out. lol Who's funding this hypothetical trust? OP, you can put in your own money and arrange for that to pay for parents' care, like my grandmother did for my dad. It can't be funded with your parents' money.
Without knowing a great deal more about your parents' finances, no proper opinion can be given.
Medicaid in most states has a 5 year lookback. Medicaid is different from Medicare.