My father started estate planning in 2018 but did not include myself or my brother on what he was doing. He moved his home into a life estate with myself and brother as secondary in 2018 but he still has right to sell without our consent which I believe makes this a lady bird deed? We have also found out we have durable and healthcare power of attorney. It looks like the attorney essentially filed life estate 3 times for the same property and I he no idea why as the first deed covered all 3 tracts but they kept filing new ones with the last being in 2023. So my questions:
the property was moved to a life estate in 2018 but since it kept being touched does that affect the asset look back period? It never changed back to himself vs the life estate but kept filing new deeds.
Can we either update the life estate to remove the clause about him having the ability to sell without our consent without triggering penalties?
He is at the point where he doesn’t understand what’s going on but we really don’t want to have to pursue guardianship but also want to protect him from scams that prey on the elderly.
Thanks!
So what your Dad has sounds like a Ladybird deed. You get the home at time of his death, not having to go thru probate?
A Widow I knew owned her own home when she remarried and Mr H moved in with her. Her Will stated that Mr. H had a life estate to the house. He paid the utilities, taxes and upkeep. He had a GF who little by little moved in. (She had a house of her own) Mr H's health started to decline. His son told the GF she had to start moving back to her home because when Mr H passed, the Will said the house reverted to the Widows 2 children. Mr. H passed not long after and the kids took ownership of the house and GF had to leave.
My understanding of a life estate is that the owner turns over their house to, lets say a child. So the child is now the owner but a life estate has been set up. Which means the oringinal owner is still responsible for all the bills, taxes and upkeep. But they don't own the house and when the parent dies, the child can claim the place without going thru probate. If I am wrong, someone will correct me.
2018 is quite a bit of time into the past. If legal has been changing & with fresh filings going on at the courthouse for not quite 7 years, all this will be waving red flags for any Medicaid review in my experience. If that law firm does not have real boots on the ground expertise on doing LTC Medicaid applications for those who retain a home and experience on filing appeals, and in dealing with MERP, then I’d suggest that your Dad find a law firm that does. Look for a CELA atty for him. The retainer & fees should be paid by Dad from his own $ resources.
Medicaids ability to review an applicants eligibility can be pretty vast. The info the POA &/or the applicant provides - imo - is a mere point in the process. Personally to me, it’s more a way for caseworker to verify what they already know and/or ferret out discrepancies to what the applicant/POA says is their situation. Medicaid dovetails with State database for courthouse filings; does PARIS review for those who get other income based benefits; can pull a TALX / EDR; request IRS filings; can send request to SSA; ability to view CMS records for Medicare & Medicaid (as health insurance). It’s just a few keystrokes for Medicaid (or their outside contractor) to do any of this. If you as his POA sign the LTC Medicaid application for him, you are taking full responsibility that all is accurate. Not the attorney, not a sibling, but you.
Just my experience but atty’s really do not want to do any more filings than they absolutely have to. Whether or not they use their online portal, or they have a paralegal go to the courthouse to file, or even do it themselves….. they keep it at a minimum UNLESS they are in litigation. For an attorney to file in 2018 then file again and again is odd to me. It may NOT have been them doing it but that your Dad was insistent on wanting changes made….. he’s the client so if he insisted then stuff was done. Loss of executive function is a hallmark of dementia, imo you have to consider this possibility.
Your Dads situation seems complex, really find a new attorney to review this whole matter with fresh eyes. Good luck.
My suggestion is take whatever paperwork you have & and sit with a Real Estate attorney to go over all in detail. An elder law atty or family law type of atty may not be experienced in the nuances for your States property / RE laws. You mentioned “tracts”, if tracts undivided interest, is 100% RE atty work. If this is actually a Life Estate, ask atty as to what date of inception & valuation and status on remainderman if dad died tomorrow. Ask if this atty can do the actuarial tax filings for remainderman if needed. Usually it’s LLM atty.
Not to be harsh but if the above makes zero sense to you, if you have never ever heard undivided interest, tax implications, what “remainderman” means, you have got to sit with an atty who does this type of work….. and that is Attorneys with a LLM. It could be a larger Estate law practice that has that type of expertise on staff.
On a related tangent, I’m guessing you are anticipating Dad is going to a NH and plan is to file for LTC Medicaid to pay for his care, right???
Plan will be him in a NH, yet continue to own home & y’all inherit it after death via whatever done to change its “ownership”?
If so, Couple of things you have to consider:
1a. LTC Medicaid both “at need” medically AND financially for eligibility. Just bc some issues with being able to do daily activities & dementia, nobody able to live with him to help him 24/7, etc. all things like this IN & OF THEMSELVES may not be enough to be eligible medically. Health chart has to - HAS TO - show actually “at need” for skilled nursing care. Otherwise ineligible. If your State does LTC Medicaid waivers for AL/MC placement, then maybe he can find an AL bed to go into.
1b vast majority of custodial care SNF/NH entry’s are from post hospitalization rehab stay. Like Dad falls at home; breaks a hip; goes via EMS to ER; hospitalized with hip surgery (MediCARE benefit); rehab discharge 2 SNF/NH (again Medicare benefit); then stops progressing in rehab so Medicare stops. Choices now are 3: 1 Dad returns home, 2 dad stays & private pays, or 3. if financially eligible Dad files for LTC Medicaid. This Dad has an extensive big fat health chart that clearly shows skilled care needed so “at need” medically is there. Imo You may want to have an assessment done so that you know how he’s going to evaluate ahead of ever doing any of this. A NH can take him without doing rehab but if he’s determined ineligible, the bill will be significant & they will go for a judgement to place a lien if unpaid.
2. if he goes into a NH & files for LTC Medicaid, he has a required Share of Cost / SOC of almost all income paid to the NH. Like SSA $, retirement $. All he gets to keep is small restricted spending Personal Needs Allowance. Most States do $50 or $75. Family will have to pay all costs on house as he has zero $ due to SOC; & pay till beyond his death as will take time for property transfers and deal w/required attempt that all States do for Medicaid Estate Recovery. If property & tracts cost 25K yr taxes, insurance, maintenance then 100% on you & siblings to pay. You know your family best if at all feasible.
If 4 heirs & 1 (or better yet, their spouse) does not want to pay their 25%, you cannot make them. Yet they will share in that eventuality of 25% ownership as that is how legal reads. So too bad, so sad for the other 3 as they will have to cover that 25% for errant sibling. Just sayin’
I’ve been on this forum a long time, what tends to happen is as soon as property tax bill due & HO insurance cancelled so only option is pricey Vacant Dwelling Policy… that is when decision made to sell it. All that legal done & time spent on upkeep was a waste of time & $. If u do this, ya better be able to cover all costs (equitably or not) and for years.
I am going to try to remember to tell folk they need a real estate attorney specialist now, and not elder law in these complicated cases.
It always worries me that they come to a forum with such complicated legal questions, which in the case of error would leave them reeling and robbed.
So glad when you pick up these questions, Igloo, and especially here you telling our OP "If you are unfamiliar with these terms".......meaning "Get thee to an ATTORNEY!"
You really don't want a bunch of opinions from strangers all around the world.
Time to take title and deed on the home and all other information to an attorney.
Part of the responsibility of a POA to get this all ironed out.
The first year is a tough one.
Time for a big record book as there's responsibility here for every penny in and every penny out. I always kept a diary as well when managing as POA/Trustee for my bro.
But the one thing for CERTAIN I learned in all that was that questions for experts need to be asked of experts, and that's just not us.
Igloo here may have a clue; hopefully she's around.
Best to you.