First - My brother and I are both disabled under SSDI Guidelines so there is NO LOOKBACK PERIOD for Medicare. Mom can transfer assets in any amount to her Disabled Children. That much I'm sure of.
My problem is, 10+ years ago she transferred the deed to my brother and I but kept a Life Estate. Now, it is medically necessary for her to be in a nursing home. Although I lived with her for the last 4 years prior to her going into a nursing home, I can't afford this home any longer. She has no money left and we are behind on property taxes and general upkeep.
I need to sell the house so we won't lose it. Can my Mom sign off to sell it (and Medicaid will get her Life Estate Share, and my brother and I will get the remainderman shares) if she has dementia? (She knows me and we can talk. She is just very forgetful. She knows she won't be going home and when we talk she is OK with me selling the house. She isn't brain dead. She knows what I'm talking about, she just can't remember things very long.
If she can't sign off, how do we get it out of her name? I'd like to find an attorney that can do this as well as be our real estate lawyer so I can pay him/her for everything at once at the time of sale. Always have serious interest in the house.
PS: I am in Massachusetts (Lynn, MA)
Thank you.
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https://www.avvo.com/legal-answers/if-some-one-has-a-life-estate-and-and-has-to-be-pl-1128993.html
February 22, 2013 QUESTIONS from MASSACHUSETTS : If some one has a life estate and has to be placed in a nursing home, must the property be sold to pay for the care?
My Mom has a life estate, if she needs to be placed in a nursing home, can we be forced to sell her property to pay for the care?
ANSWERS from attorneys on that website:
--Posted on Feb 22, 2013: In a word, "No". She doesn't own the property, just the life estate. Presumably the nursing home could try to get any net rents arising from the life estate, if the property is income producing, but they can't make you sell what isn't hers (the fee residuum) to sell.
Of course, if they can show that she divested herself of the fee interest with the intent to avoid nursing home bills, they may be able to unwind the conveyance as a "fraudulent transfer".
--Posted on Feb 22, 2013: The short answer to your question is no but you will want to make sure that your mother's Medicaid application is completed correctly. You should contact an elder law attorney to help you with the process.
--Posted on Feb 25, 2013: Some states have a broad definition of an "estate" for purposes of Medicaid recovery. In broad or expanded definition states, when someone like your mother passes, Medicaid will go after the value of her interest the moment before she died, based on actuarial tables. The elder law attorneys in Massachusetts know how life estates are treated in Massachusetts, but don't think that the rule applies everywhere. Contact a local elder law attorney for advice.
--Posted on Feb 22, 2013: On a strictly legal level, a life estate is a possessory interest which, while it is a form of partial ownership, is not one with any permanence or real value on the open market. MassHealth (in Massachusetts) cannot force a sale or place a lien on the property, but if it is rented out on mom's behalf, the profits must be paid over or else a disqualification will be triggered if discovered.
However, most times elder law attorneys get asked this question, the underlying situation is that at some point in the past mom executed a quitclaim deed to herself and the kids giving them the property and retaining a life estate for herself. If that is the situation in your case, the deciding factor is whether the conveyance was made within 5 years of the MassHealth application. If so, it is a disqualifying transfer to the extent it was gifted* to the co-owners. In such a case, they can't force a sale, but they will deny care for a period of years, and you may still have to sell the property to privately pay for the nursing home in the interim.
Additionally, you may want to sell the property now, or buy out mom's remaining interest so that you can rent it without intrustion, even though it means some money will be directly turned over to the state/nursing home. Doing so may not require as much money as you would think, and should be discussed with an experienced elder law attorney.
* gifted includes outright gifts, or if sold, any significant amount the property was sold for less than fair market value. However, fair market value is not merely a reasonable price at the time of the deed, but that price LESS the actuarial value of the right your mom kept to possess the property for her life expectancy. Figuring this out is just one of several reasons you need a good elder law attorney if this transaction was within the 5-year MassHealth look-back.
So the best advice has been given, you need to talk with an attorney who is knowledgeable about Life Estates, Medicare and Medicaid for Massachusetts. If you click on "Care Topics" on the BLUE RIBBON at the top of this website, you can search for Elder Attorneys in your state. Hope that this information is helpful.
Looks like the house was transferred before the lookback period but the Life estate may cause a problem. And not sure about being legal to transfer assets because ur disabled. In normal circumstance (mom still owning her home) If as a disabled child you were residing in her home at time she went on Medicaid you may have been able to stay and after her passing stay. A lean would have still been put on her house after her passing just not recovered until ur death or sale of house. But I have never heard about a disabled adult child being allowed to keep other assets. This is what u have to check out. There is really a difference between a child who was born with a disability, like Downs Snydrom or Cerebal Palsy, and a child who was disabled as an adult.
You need a lawyer.
As for the transfer of assets to disabled children, that is one of the "Exceptions" to the look back period and you don't have to be living there or under any certain age. This much I am completely positive about.
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