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Mom has dementia since March 2016, crazy sister had Mom change her Will to leave New Hampshire house to her only. Mom has 7 other children. I am her legal guardian, (she lives with me in Oregon) can I change the Will ?
Your mother’s lawyer who completed this new will leaving everything to her sister will only have the benifishery (your mothers sister) interest at heart. Do not use them for advise, if I were you I would sell the property, to pay for your mothers care. Spend all her money on her give her the best of the best. Buy a new car with them money needed for to transport your mother around, build an extension on your house for your mother to live in. Use as much as you can. Greed is disgusting.
So sad that this always happens. I would suspect that if she changed house to her only if your mom has bank accounts she probably changed the POD to herself. Maybe you can sell the house.
You need an Elder Law lawyer and someone who is Certified. You cannot sell any real property in California. Medicaid or MediCal would place a lien on your mother's home from expenses of her care (that is if or when you are unable to care for her). There is a 3-year look-back period.
Supermom...I better clarify. My POA can change beneficiaries to my life insurance policies and investments but cannot make any changes to my will. I didn’t answer you correctly originally and I apologize. Like a lot of folks here have said and I stress, contact an attorney. (You don’t only need good advice; it needs to be correct as well !) My eyes read something totally different than my brain comprehended in your question. And I need a vacation very badly!
I re-read my original post to be sure I didn’t say anything about my POA being able to amend my will. I didn’t. My post referred to beneficiaries and included the advice for the person who posted the original question to contact an attorney. As far as if I was sure I wanted my niece as my POA...in my particular situation she is the most logical and intelligent choice.
MountainMoose, my point is about medicaid. Whether it's a will going through probate or a Transfer on Death deed, her mom would still have owned the property while on medicaid. Thus medicaid must recover costs from her estate when she dies. Which would include the property. A trust would shield the property from medicaid recovery. Since technically, she no longer owns it. Thus my question of whether she will be on medicaid. Since if she does go on it, will or Transfer on Death deed doesn't matter, the house may not belong to her or her sister, it may belong to medicaid. It depends on the state. It seems some exclude TODs from medicaid recovery and others do not. OP should check with a medicaid/elder law attorney in her state if medicaid is a factor.
i would not wait long to know what has happen to her will if your mom made it at when she was sane then check to see the changes then if seem to be when she was not right of mind then go to it & like i said contact the lawyer that id the original
needtowashhair: The mother continues to own the property with a Transfer on Death deed. It only kicks in upon the mom's death. If a lawyer recommends this, once this TOD deed is recorded it supersedes the will. (Unless I misunderstand you, which quite possible.)
I agree with going with a trust. You mentioned you set up a transfer upon death deed but what about medicaid? If she goes on medicaid, they will attempt recovery.
Old people can be manipulated, especially by a family member. I have a secretive con artist half brother. My mother put her house in a irrevocable trust which protects the house from liens. But he's capable of manipulating her to make out a new will.
If you can set up a trust, that is probably the best; talk to a good elder lawyer about it. You could get the house out of the will, and yourself as trustee, you could deal with the property as needed. You don't want to get the house in your name as that brings up issues you don't need.
Your question raises lots of issues. By all means, seek legal advise, especially since State laws will vary. However, I have some thoughts.
First, when you say you are her "guardian," I'm assuming that legally you are the appointed "attorney-in-fact" under a DPA (durable power of attorney.) In my Mom's case (and there are 6 siblings), after Dad passed back in the early 2000's, Mom's regular checking account was changed to a joint account with one sister added. This was mainly for convenience -- Mom was having trouble handling bills, etc. and eventually, sis set up online bill-pay to handle routine expenses. That account was never real big. (Remember that a joint checking account typically has right-of-survivorship provisions, meaning that upon the death of either signor on the account, the money will pass "by operation of law" to the survivor. Having a large joint bank account can seriously mess up an estate plan, because that money is passing automatically to an individual, by operation of law and outside of probate, and not pursuant to any provisions in a will; thus a person's intent for ultimate distribution of assets upon death can unknowingly become ineffective.)
But most of Mom's assets consisted of a brokerage account and her house, which was paid off. And because I knew the broker and had dealt with him frequently before Dad passed, he typically called me to discuss investments. At first I'd always run his suggestions by Mom, but she always said that whatever the broker and I thought was fine. Eventually, I simply quite calling her. And the broker was honest and good, and the account did well. I never got any "compensation" for being the go-between but never expected any. I also dealt with her accountant to make sure her taxes were getting filed and paid. All in all, kind of a pain. But one of my sisters was doing A LOT of day-to-day things, like grocery shopping, taking Mom to dr. appointments, laundry, etc.
Eventually, as Mom began to decline, she agreed to move to AL. We sold her house (she actually signed in her own capacity), and that money went into the brokerage account. Then she began showing obvious and increasing signs of dementia, so we sibs decided that a formal DPA should be set up. In this case, I'm co-attorney-in-fact with a different sister. I'm also added to the joint account so I can, for example, write estimated quarterly tax payment checks to the IRS for Mom, pay the accountant, pay the premiums on her life insurance, etc. It's a little bit of work, and the "co-attorney" thing under the DPA is a big pain, because now my other sister and I have to both agree, at least verbally, if Mom's broker makes a recommendation.
So, the DPA became effective upon Mom's executing it (signing it and having it notarized at the lawyer's office). It remains in effect even if Mom is officially incompetent or incapacitated. It grants very broad powers to the appointed attorneys-in-fact over the assets of the Principal (Mom), including: providing for the principal, making withdrawals and deposits, transferring, selling and gifting assets, outright or in trust, including "to the attorney-in-fact or any heirs," signing documents, transferring assets to help Mom qualify for medical assistance or nursing home assistance programs, and provisions to receive medical records or information otherwise prohibited by HIPPA.
All that said, basically we just manage Mom's assets, make sure her bills are paid, and do some gifting as permitted by the Federal tax code to get money out of Mom's estate. (Now, when we cleaned out Mom's house, I do think my sisters managed to divide among themselves several thousand dollars worth of jewelry and silver (20 - 30k), but hey, what are you going to do? Mom's still alive and it was before the DPA was signed, so I guess she "gifted" it to them.)
So looking at your situation:
1. Does your mom still own the house or has it already been transferred to your crazy sister? If she still owns it, and depending on the specific language of the power of attorney, I believe you can make provisions to put it in trust, sell it, transfer it to yourself if that seems right, etc. Those things could be done without changing the will; it's just that upon mom's passing, the disposition of assets under the will do not include the house -- it's already out of her estate.
2. The post about mom's mental state when she reportedly made the will leaving the house to your sister is a good one. If she was competent at that time, then her will reflects her desires. However, maybe conditions have changed. Maybe if she were competent now, and knowing various facts, whatever those might be, she'd make a different decision. Either way, I believe that broad powers under a DPA could get the house out of her estate. And there may be reasons to do so that have nothing to do with simply keeping it from your crazy sister; for example, to move or protect assets so your mom is able to qualify medical assistance.
3. Whatever you do, be sure you have the original Power of Attorney document, not just a copy. Also, I believe that kind of document can be recorded with the Clerk's office for the County you live in. It's then a matter of public record, like a deed or mortgage. But even doing those things, do not expect to just waive a document around and, like, drain her bank account or sell the house and put all the proceeds in your personal account. Banks, real estate people, stock brokers and governmental officials will always do some "due diligence" to make sure your mom's interests are being protected.
These are obviously things a competent attorney can advise you on. So don't just fume and do nothing. Legal advise isn't cheap, but a relatively small investment now could greatly benefit your mom and you in deciding what is the right thing to do in the long term.
Good luck. I know what "crazy" relatives can be like -- not that mine are! I've just heard stories, you know....
As others have quite clearly said - seek out an appropriate attorney. In your case you might need two, one for the state you are in and one for the state where the home is.
I think the suggestion of selling the home NOW might be the best course of action, which likely needs court approval (you say you are guardian - was that court appointed or just a term you are using because she lives with you?), but this is where the attorney should come in. They know the laws. IF the home can be sold, the assets should be held in a trust for MOM's benefit, and it can clearly state who gets what is left, if anything, at the time of death.
What is being done with this home now? RE taxes in NH are not cheap! Upkeep is not either... if she's never going to live in it again, why hang on to it? In our mom's case we had already put her assets in an irrevocable trust, but will only sell if the funds are needed when other funds are depleted, because there would be big tax implications in selling the condo now. If it were a stand-alone home, I would suggest to my brothers that we take that hit, because I would NOT want to deal with renting that. Her place is a 55+ unit and it is less likely to get scumbag renters (still could happen, but less likely.)
So, again, write up your concerns and seek legal advice!! Concerns should also include if you have her original will AND proof that she was not competent at the time your sister "redid" the will....
Guardian of property can change bene information. You can not change the contents of the will. You will need to contact a lawyer. You can challenge the will at the time of execution.
Worst comes to worst, you can challenge the will. Wills aren't always the final say. Especially if it goes to probate. Unless it's in a trust, it'll go to probate.
See an attorney. Can you have 24/7 care available for your mother or is this family feud time? Siblings act crazy and jealous so it sounds as if you want to stop control by your sister. Run, don't walk to an attorney.
I'm not a lawyer, so I agree with others who suggested hiring a lawyer. That being said, if your mother was diagnosed with dementia before the will was modified, you might have a good case for getting the will rescinded.
YOU can't someone else's will but you can say that she wasn't competent at time she made that last will so then it would revert to previous one but you would need to prove she was incompetent - long shot is undue influence or sue sis after the fact - good luck
I agree, check with an elder law office. I am not sure about the laws across the states but here is what we were able to do. First I ask, how long has your mother lived with you? In our case, we live with my mom, and had done so at the time in excess of 5 years. The atty did a quit claim deed and the mom is the owner of the home as long as she is alive. Once she passes it becomes my husband and mine. Because of the 5 year gift law towards medicaid, should she need to go to a NH only her monetary assets will be used for that need. Again we are in NE so definitely check with an atty.
After reading rainmom's first comment mentioning "losing" the document, I was wondering what would happen if the sister countered with "yes, it was updated, and here is a copy of it" and perhaps other evidence of the update. Although the copy might not carry any weight, it might serve as credible evidence that a change was made and then Supermom might have to face "A new will was made; what did you do with it? Did you lose or destroy it?" which potentially could have some negative consequences.
Heysilky, My gut reaction is that POA doesn't give authority to change a will. Beneficiaries, yes; but I don't think heirs are the same as beneficiaries. I was POA for someone who was paralyzed; and when he wanted to change his will, the attorney didn't have me sign it. As I recall, we had 2 unrelated independent witnesses (not heirs) confirm with him that this was his desire, then they signed for him. He was mentally competent, just unable to sign.
I’m think that you cannot. Definitely consult an Elder Law Attorney on that. Was your mom’s cognition impaired at the time the will was made? Are you also the court appointed fiduciary? You may need to sell that home to pay for her care in the future. Definitely seek legal advice. Best of luck!
You are her guardian, but you need to be her legal Power of Attorney to sign anything so I suggest you seean attorney and have him help you with the paper work or else the courts may not help you.
I agree with rainmom. If you have a General Durable power of attorney, you can sell the house or place it in a trust for your mom. I live in Texas and am my dad's POA, both General/Durable and medical. I have full control to sell anything he owns (as long as he is alive). Once they pass the POA means nothing. Before my mom passed, she had a niece do some fishy things, but thank goodness, their house was on a deed of survivorship and the house automatically went to the survivor and did not go through probate. It would have been a huge mess had the deed been set up as a common deed of trust. An Elder Attorney is your best bet. They can advise you!
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APFM does not endorse or recommend any provider. It is your sole responsibility to select the appropriate care for yourself or your loved one. We work with both you and the Participating Communities in your search. We do not permit our Advisors to have an ownership interest in Participating Communities.
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We do not charge you any fee – we are paid by the Participating Communities. Some Participating Communities pay us a percentage of the first month's standard rate for the rent and care services you select. We invoice these fees after the senior moves in.
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First, when you say you are her "guardian," I'm assuming that legally you are the appointed "attorney-in-fact" under a DPA (durable power of attorney.) In my Mom's case (and there are 6 siblings), after Dad passed back in the early 2000's, Mom's regular checking account was changed to a joint account with one sister added. This was mainly for convenience -- Mom was having trouble handling bills, etc. and eventually, sis set up online bill-pay to handle routine expenses. That account was never real big. (Remember that a joint checking account typically has right-of-survivorship provisions, meaning that upon the death of either signor on the account, the money will pass "by operation of law" to the survivor. Having a large joint bank account can seriously mess up an estate plan, because that money is passing automatically to an individual, by operation of law and outside of probate, and not pursuant to any provisions in a will; thus a person's intent for ultimate distribution of assets upon death can unknowingly become ineffective.)
But most of Mom's assets consisted of a brokerage account and her house, which was paid off. And because I knew the broker and had dealt with him frequently before Dad passed, he typically called me to discuss investments. At first I'd always run his suggestions by Mom, but she always said that whatever the broker and I thought was fine. Eventually, I simply quite calling her. And the broker was honest and good, and the account did well. I never got any "compensation" for being the go-between but never expected any. I also dealt with her accountant to make sure her taxes were getting filed and paid. All in all, kind of a pain. But one of my sisters was doing A LOT of day-to-day things, like grocery shopping, taking Mom to dr. appointments, laundry, etc.
Eventually, as Mom began to decline, she agreed to move to AL. We sold her house (she actually signed in her own capacity), and that money went into the brokerage account. Then she began showing obvious and increasing signs of dementia, so we sibs decided that a formal DPA should be set up. In this case, I'm co-attorney-in-fact with a different sister. I'm also added to the joint account so I can, for example, write estimated quarterly tax payment checks to the IRS for Mom, pay the accountant, pay the premiums on her life insurance, etc. It's a little bit of work, and the "co-attorney" thing under the DPA is a big pain, because now my other sister and I have to both agree, at least verbally, if Mom's broker makes a recommendation.
So, the DPA became effective upon Mom's executing it (signing it and having it notarized at the lawyer's office). It remains in effect even if Mom is officially incompetent or incapacitated. It grants very broad powers to the appointed attorneys-in-fact over the assets of the Principal (Mom), including: providing for the principal, making withdrawals and deposits, transferring, selling and gifting assets, outright or in trust, including "to the attorney-in-fact or any heirs," signing documents, transferring assets to help Mom qualify for medical assistance or nursing home assistance programs, and provisions to receive medical records or information otherwise prohibited by HIPPA.
All that said, basically we just manage Mom's assets, make sure her bills are paid, and do some gifting as permitted by the Federal tax code to get money out of Mom's estate. (Now, when we cleaned out Mom's house, I do think my sisters managed to divide among themselves several thousand dollars worth of jewelry and silver (20 - 30k), but hey, what are you going to do? Mom's still alive and it was before the DPA was signed, so I guess she "gifted" it to them.)
So looking at your situation:
1. Does your mom still own the house or has it already been transferred to your crazy sister? If she still owns it, and depending on the specific language of the power of attorney, I believe you can make provisions to put it in trust, sell it, transfer it to yourself if that seems right, etc. Those things could be done without changing the will; it's just that upon mom's passing, the disposition of assets under the will do not include the house -- it's already out of her estate.
2. The post about mom's mental state when she reportedly made the will leaving the house to your sister is a good one. If she was competent at that time, then her will reflects her desires. However, maybe conditions have changed. Maybe if she were competent now, and knowing various facts, whatever those might be, she'd make a different decision. Either way, I believe that broad powers under a DPA could get the house out of her estate. And there may be reasons to do so that have nothing to do with simply keeping it from your crazy sister; for example, to move or protect assets so your mom is able to qualify medical assistance.
3. Whatever you do, be sure you have the original Power of Attorney document, not just a copy. Also, I believe that kind of document can be recorded with the Clerk's office for the County you live in. It's then a matter of public record, like a deed or mortgage. But even doing those things, do not expect to just waive a document around and, like, drain her bank account or sell the house and put all the proceeds in your personal account. Banks, real estate people, stock brokers and governmental officials will always do some "due diligence" to make sure your mom's interests are being protected.
These are obviously things a competent attorney can advise you on. So don't just fume and do nothing. Legal advise isn't cheap, but a relatively small investment now could greatly benefit your mom and you in deciding what is the right thing to do in the long term.
Good luck. I know what "crazy" relatives can be like -- not that mine are! I've just heard stories, you know....
I think the suggestion of selling the home NOW might be the best course of action, which likely needs court approval (you say you are guardian - was that court appointed or just a term you are using because she lives with you?), but this is where the attorney should come in. They know the laws. IF the home can be sold, the assets should be held in a trust for MOM's benefit, and it can clearly state who gets what is left, if anything, at the time of death.
What is being done with this home now? RE taxes in NH are not cheap! Upkeep is not either... if she's never going to live in it again, why hang on to it? In our mom's case we had already put her assets in an irrevocable trust, but will only sell if the funds are needed when other funds are depleted, because there would be big tax implications in selling the condo now. If it were a stand-alone home, I would suggest to my brothers that we take that hit, because I would NOT want to deal with renting that. Her place is a 55+ unit and it is less likely to get scumbag renters (still could happen, but less likely.)
So, again, write up your concerns and seek legal advice!! Concerns should also include if you have her original will AND proof that she was not competent at the time your sister "redid" the will....
I was POA for someone who was paralyzed; and when he wanted to change his will, the attorney didn't have me sign it. As I recall, we had 2 unrelated independent witnesses (not heirs) confirm with him that this was his desire, then they signed for him. He was mentally competent, just unable to sign.
The repercussions of You changer Her will - OMG!!
Elder Attorney!! Any Attorney!!