As my 91 year old mom’s care has become more intense, myself and hired caregivers are shouldering the burden while my brother increasingly talks about putting her in a facility. We would be able to pay for her in a facility and my brother’s household living expenses for two years. My brother has shown no interest in getting a job, or even maintaining the property. He recently said we could just take out a mortgage on the house should the money run out.
My brother and I have been taking care of my mother after my dad’s passing in 2018. My brother has lived off my parents income since he moved home in 2007, he has no dependents, no disabilities. My parents put the house in an irrevocable trust around this time, retaining a life estate to live in the house until their deaths. I was given POA because I was living a responsible life, while my brother moved home due to financial instability and legal problems. We are equal heirs to the house.
So the only other possible alternative is for my mom and I to rent an apartment where we could continue to care for her. But she is not thrilled by this idea. My husband and I live in a one-bedroom apartment in a four-unit house that he owns, in a nearby city. We would rather avoid displacing a tenant to bring my mother in.
I couldn't agree more.
For me, in any situation like this, Igloo would be Bible and Verse. Do take her advice.
One point from your title: if you are acting as your mother's agent under her POA because she has been declared incompetent, either now or in the future, you cannot use her money, either income or savings, to pay for your brother's living expenses. Your legal obligation is to use your mother's money and assets for her expenses and needs, not anyone else's.
That house placed in Irrevocable Trust in 2007 means house is no longer an asset of your parents. Trust owns house till once both over age 55 and decision made to dissolve Trust. For irrevoc Trust to get lending will be difficult UNLESS the Trust itself has its own assets 100% titled in the Trusts name that “feed” $ as needed to support the costs to maintain assets (house) within the Trust AND the Trustee's have the ability to themselves get lending AND the house is a safe bet for securitization by the lender (house is fully insurable for todays risks & upgraded for those risks, eg roof under 10/15 years).
Brother cannot on his own get lending from a bank. However he can find a shifty loan company that will lend at high rates based on his interest in that house. If I were you, I’d look at courthouse filings to see if there is anything placed on the house. And if your County does notification of any changes on Title or Lien placement, sign up for that.
I’m going to guess 2007 Trust has ONLY the house as its asset?? That your folks then and your mom as a widow now has paid all house costs from their/her own $ (SSA $, investments, savings or other income). Mom pays all taxes, insurance, repairs utilities whatever’s for house. Plus she’s also paying caregivers. & Sonny gets $ from mom as well. All will surface in documents for the lookback that LTC Medicaid application requires. Any $ paid by the applicant to support others - unless legal dependents with tax filings establishing this - will be a transfer (of assets) penalty on a LTC application. LSS ineligible! And for real fun, ineligible at the point in time when she is in a NH. So you as POA stuck with a crisis of a $$$ NH bill, a mom with no $, a mom who requires NH care, a useless brother, and a Irrevocable Trust house with regular costs and an increase tax bill as mom’s homestead exemption is gone.
Mom will have no $ as max of 2K in assets for LTC Medicaid for most States. And LTC require her to pay a Share of Cost of almost all her monthly income (SSA, other income) to the NH. She has zero $ to pay anything on Trust owned house. Once ineligible, NH will seek payment for past due and financial responsibility placed on you as POA for her to stay there.
Realistically you as POA need to contact the law firm who did the Trust to review the documents and give options as what can be done to dissolve Trust as of Brothers age 55. The Trust law firm may not be Medicaid savvy. So find one that is, b4 you do anything to dissolve Trust. Not a DIY.
Please get on this ASAP as this is not sustainable unless she has imho a minimum 600K or better liquid right now. 600 large might - just might - outlive her if house remains in Trust. You should never ever be spending any of your & your hubs own $ on any of this. Mom’s money used to figure out what’s needed. Find a CELA level of attorney if the old Trust atty is not capable. Again not a DIY.
Re: Alva's point, the trust was set up that once we turn 55 we own our share of the house, "outright and free of trust." That has happened for me, he will turn 55 this spring. I have spoken to an attorney a year ago. I suppose I have a few months to build a case on evicting him, but we didn't talk about that.
He is not disabled. If he has a mental illness it is not acknowledged. He has always been resistant to getting help.
Might I ask you--is your brother mentally ill? Because suggesting he can do a mortgage on a home, even if it IS (as it is) in an irrevocable trust, is a squirrely suggestion. No one owns to house other than the trust. He cannot put a mortgage or take a loan on something that doesn't belong to him. And it doesn't (yet) belong to him.
You say that you are the POA. That gives you complete power over the decision as regards your mom. However, only the TRUSTEE has any decisions as regards the trust, and until mom's death there isn't a whole lot to do.
This is quite a complicated mess. You have here:
1. A mom who cannot make decisions for herself with a daughter who is her POA
2. A brother who has always lived rent free off his parents and has little interests in being any help.
3. Decisions to make for the Mom's welfare.
4. And a Trust responsible for a home of someone who is not competent.
You say that you can afford to put mom in care. So clearly there is money here outside this trust. That's a good thing, because YOU NEED AN ATTORNEY now, and they're expensive.
This is far too complicated now for me to have a clue what your options might be.
I can only wish you and Mom best of luck.
Perhaps his untreated unacknowledged mental illness makes him dependent.
Maybe he needs to look at section 8 housing and Medicaid?