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Dwayne B.
Dwayne B., Attorney
Category: Estate Law
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Experience:  Estate Law Expert
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My mom has Alzheimers, diagnosed 7 years ago. 4 years ago, I quit my job to come

Customer Question

Hello. My mom has Alzheimers, diagnosed 7 years ago. 4 years ago, I quit my job to come back and take care of her. 24/7 365, I have assisted her in everything she does. I have statements from other family members and friends telling of events and/or circumstances that reinforce this claim. I also have documentation from her physician that set forth their belief that the parent was only able to remain in the home because of my full time care and that my actions kept my mom out of a assisted living/nursing home for at lease two years.
My sister has a Life Estate Deed and a POA. But I recently realized that the LED only keeps Medicare from taking the house, but we can not sell it to help pay for her care(when we go that route), we have to wait until she passes to sell. How do we go about gifting it to me? Can my sister gift it? My mom isn't capable of making that decision.
Thank you for any help in advance,
Respectfully,
Bruce Wooten
Submitted: 1 year ago.
Category: Estate Law
Expert:  Dwayne B. replied 1 year ago.
Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts.
If your mother is not competent then it can't legally be gifted. Your sister isn't allowed to gift it since she can only use the POA to do things that are in the best interest of the ward and there isn't a justification whereby gifting the house is in her best interest.
Your sister can sign a deed to you using the POA but that deed can be challenged later and if challenged it will fail. It also opens your sister up to a lawsuit since she is acting in a fiduciary relationship to your mother by using the POA and a fiduciary relationship is the highest relationship known to law. She can't do anything that is not absolutely in the ward's best interest.
That being said there may be a way to sell the house to you for close to Fair Market Value and also sign off on an agreement whereby you are given a certain amount of credit for the care you provided to your mother over the past few years. You would want to visit with a local lawyer that does real estate as well as trusts and estate work so that they can structure everything correctly bearing in mind the government lookback period.
Please ask any follow up questions in this thread.
Customer: replied 1 year ago.
She hasn't been registered as being incompetent. If we asked her if she wanted to gift it to me, she says yes. She is still able to go to an attorney and carry on a general conversation and sign her name. She may need to be reminded why we are at the attorney's office, but she would be consistent in that her wishes are to gift me the house.Does that change anything?
Customer: replied 1 year ago.
Also, with the Living Estate Deed, if both my sister and mother agree and sign to gift it to me, is that an option?
Expert:  Dwayne B. replied 1 year ago.
If your mother isn't competent then her signature probably is going to be an issue but if the lawyer questions her and is convinced of her competence then ti should be okay. Your sister can waive her life estate if she chooses to do so. There is a specific form you can use to do this. You don't see it very often because it is just one of those issues that never come up but the lawyer will have one or can get it from the title company if you go that route.
However, gifting the property to you still won't solve the problem of the government being able to take it under the lookback and clawback provisions whereas if it is sold to you for FMV then they couldn't do that (normally).
If you are just wanting it on your name to sell it then it is not as big of an issue but be sure you get a lawyer to do the paperwork because if there is a mistake on it then it can cost a LOT of money to correct it.
Customer: replied 1 year ago.
Understood. Is there a specific filing I need to ask for? Or just have my mom ask to gift her house to me and they know what to do?
Expert:  Dwayne B. replied 1 year ago.
Just explain what you are trying to do and they will explain the best way to go about it. Sometimes a gift deed isn't the best way, it could be a Quitclaim Deed or a Warranty Deed. It depends on what the title insurance companies in your area will require when you get ready to sell or refinance it.
Best wishes to you, and your family, and please don't forget to leave a Positive Rating (of course I’d suggest Excellent!) so I receive credit for my work.
Customer: replied 1 year ago.
Thank you for your help. Excellent it is!
Expert:  Dwayne B. replied 1 year ago.
Much appreciated!

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