Elder Law Q&A – July, 2010

Q: I have a question regarding moving my husband’s 87-yr old grandmother to MD from FL since the passing of my father-in-law. We have already purchased a 55+ community condo for her, and will be moving her up in 3 weeks. She does not own a home, and it is my understanding that she only receives a small pension and social security. So, thankfully, there are no assets to fight over that we know of. She has one living son in NY with whom we have no contact. Other than ensuring she has a new medical power of attorney drawn up after the move, should we be addressing anything else?

A: It sounds like you’re in pretty good shape. I would ask your husband’s grandmother to execute a financial durable power of attorney as well as the medical directive. Also, as part of the move, she should set up a new bank account in Maryland to receive direct deposit of her Social Security and pension and include your husband as joint owner. This will make it easier to manage her finances.

Q: I am in the position where I have to decide whether to put my father in a nursing home or not. I have found a facility that seems appropriate, it costs $4,500 per month. My brother has said he would like to keep him out but they don’t have the space. Could my father pay my brother the $4,500 per month instead of paying it into a nursing home. What are the legal/tax implications if any, and can we do this. It would be great solution for all as my brother has had some financial difficulties over the last few years, and it would keep my father out of the nursing home.

A: Certainly, your father can pay your brother a fair rate for taking care of him. The nursing home cost is also a reasonable measure of what that rate should be, assuming your brother can provide care comparable or superior to that provided in the nursing home. I strongly recommend that your brother and father (or you on your father’s behalf) enter into a written agreement as to what your brother will provide so that no misunderstandings will arise in the future. An experienced elder law attorney can help with this since he or she will have a good idea of the issues that may arise in the future. The attorney can also advise on planning steps that may be taken to save money if your father ultimately does need nursing home care. Finally, your brother needs to be aware that the payments to him need to be reported as taxable income.

Q: We added one of my children to the deed on our property via a quitclaim deed. We signed at home with no witnesses or notary. My husband died in 2006 of cancer. I want to sell the farm and move, but my daughter wants it all. Do I have any recourse to get my farm back? I will sell it to her, but she says it is already hers.

A: You may or may not have recourse against your daughter. Clearly, putting your daughter’s name on the deed gives her an ownership interest. But the fact that there was no notary may make the deed invalid depending on your state’s law. In addition, I don’t know why your daughter’s name was added to the deed, but there may be an argument that she is supposed to be acting as trustee for you. The problem with this approach is that it will be your word against hers and your husband is no longer here to testify. Finally, if all else fails, there is an action called “partition” which would allow you to force the sale of the property, but you would have to split the proceeds with your daughter. I recommend that you consult with a local attorney to determine what is possible in your case in your state. This is certainly an object lesson in what a big step it is to change the ownership of real estate and why getting professional counsel can help avoid a big mistake.

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