Question: My husband and I haven’t lived together for 27 years, but we never got a divorce. We have three grown children. When we parted ways, he bought my interest in the home where he now lives. I retired after working for a bank and live alone. I bought my own home that is paid for, and I have a pension, savings and a small vacation home. I heard he has had a live-in girlfriend for the past dozen or so years, but I have not seen or heard from him since I left.

Last week, one of our children called and told me that their father (now age 68) had a stroke that left him paralyzed and totally incompetent, meaning he would be put in a nursing home for the rest of his life.

I decided to make the trip to see him and was shocked not only by his condition but also by the financial mess. Apparently, Medicare will pay in full for only the first 20 days, and then the cost will be more than $6,000 per month. His income, including Social Security and his pension, is only $2,200 monthly. He owns a half-interest in his home (he gave the other half to his girlfriend, who also has her name on all of his bank accounts), $25,000 in the bank, and $15,000 in an IRA.

Since he never signed a financial or health care power of attorney, I, as the “wife,” am the only person to whom the nursing home and doctors will talk. They sent me to the Medicaid office to talk about his future care, and I learned that for him to qualify, his assets could not be more than $2,000 plus his house, which does not count. But they also tell me that my assets count, too -- even though we have not lived together for 27 years and I acquired the vast majority of what I now have with my own money. While I feel bad for him, I’m not willing to give up 27 years of hard work to pay for his care. Can I divorce him now? Is there anything I can do short of divorce?

Answer: Your question raises a myriad of complicated issues, many of which could have been solved by a modicum of prior planning. Leaving aside for a moment who will be making his health decisions, under federal law, at the time a Medicaid application is filed, the “nursing home” spouse will be able to keep $2,000 in countable resources along with certain excluded resources, such as a primary residence. Since you and he are still married, in Medicaid’s eyes you are the “community spouse,” and your assets are relevant to your husband’s qualification. Depending on the limits set by his state of residence, as community spouse you can have a “Spousal Share” of between $19,908 and $99,540 of countable resources (2006 figures) without affecting his Medicaid eligibility. There are also income rules that, because of space, will not be addressed here.

Clearly, had you and he divorced, none of these questions would have arisen because federal law does not allow states to consider the income or resources of non-spouses in either determining an adult person’s eligibility for Medicaid or collecting reimbursement for amounts paid by the state for services provided to that person. For that very same reason, his girlfriend, who owns a half-interest in his home, cannot be made to support him, but your husband’s gift to her of a half-interest in that home could well penalize him, depending on when the gift was made and the value of the home. Whether you can divorce an incompetent spouse will depend on the law of his state of residence, and we suggest you contact an experienced matrimonial lawyer immediately.

In our view, because your husband has no power of attorney, one of your children should apply to be appointed as his “conservator” by your local probate court. In this way, one of the children will be able to make independent decisions about selling his assets. If health care decision-making is an issue, one of the children can be appointed as guardian by the probate court or, under the adult health care consent act in your state, if you refuse to act, your children are next in line.

Because you and your husband have conflicting interests, the ability to plan will be made more difficult, and many of the potential planning techniques used to protect assets have been lost due to last-minute scrambling.