My mother is 83 with dementia. It’s to the point that she needs nursing home care. I have been her caretaker for the last 4 years. The home we live in is in both of our names. We want to transfer into my name only. She will have to go on Medicaid. May I have your advice please as to the proper way of handling this?
You need to meet immediately with an Elder Law Attorney who is knowledgeable about Medicaid in your state. First it is necessary to address the issue of authority to transfer the home. Does your mother have mental capacity to sign legal documents? It is important to understand that capacity is a legal issue, not a medical one. Further, there are multiple forms of capacity, most commonly testamentary capacity and contractual capacity. A medical diagnosis is not determinative of capacity.
There are set rules for determining capacity. However it is important to understand that capacity can fluctuate from day to day or based upon the hour of the day. Individuals with dementia can suffer from something called sundowners, whereby they may have capacity early in the morning, but lack it by the end of the day. So, the first thing you need to do is work with an Elder Law Attorney to determine if your mother currently has legal capacity. If your mother currently has capacity, she can sign the deed without the need for a power of attorney, though you certainly want Durable Powers of Attorney for Health and Durable Powers of Attorney for Property to be able to assist her.
Assuming that she lacks capacity, but has Powers of Attorney in place, the next question is whether the Durable Power of Attorney grants the agent authority to gift or transfer property and if you are the named agent whether it also allows for self-dealing in certain circumstances. Most people do not understand that all Durable Powers of Attorney are not the same. While most States have a statutory form, which is what many people use without modification, the Durable Power of Attorney statutes are designed to allow significant modifications to the extent and nature of the powers granted.
Many people and Attorneys believe that a standard form covers everything, frequently relying on the apparent broad authority granted on the face of the document. Unfortunately that is not true. As an Elder Law Attorney the Durable Powers of Attorney I prepare for my Clients contain substantial modifications which allow the agent to take specific actions, including steps to transfer property to a child caregiver under Medicaid.
It is also essential to understand that Medicaid, unlike Medicare, is not a matter of right. You must understand that the burden of proof is on you to establish that you meet all the criteria to qualify. Unfortunately while the laws are published, the State agencies in charge of Medicaid frequently do not publish or advise you what exactly is required to establish your rights.
In most States there has been active efforts to reduce the number of people on Medicaid and whether it has been done by changing the statutes or by modifying the procedural requirements, both written and unwritten, large numbers of qualified individuals that have had their applications denied because of a naïve belief that since they meet the general legal standards that the State will automatically approve them. Jointly owning the property with your Mother does not mean that you can keep the house and protect your mother.
It is imperative that you retain an experienced Elder Law Attorney immediately if you seek to protect your claim to the home while still getting your mother qualified for Medicaid payment for her care. Good Luck.
Today’s Answer was provided by James C. Siebert, Esq., of The Law Office of James C. Siebert & Associates in Arlington Heights, Illinois.