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now I am having issues with a sibling that never visits him or hasn’t helped take care of him , but wants to come take over his house since he’s not there.
If your father isn’t coming home again, put the house on the market for sale. Get a ‘For Sale’ sign out the front. That should solve the problem. If you think your sibling might just move in, change the locks.
It depends on type of deed. Did you consult with an eldercare attorney? You also have to consider homeowner insurance. They can drop coverage of they know it is vacant.
The laws varies by state. For example in NYS, If it is a straight forward deed the sale of the house will pay for LTC and medicaid will be suspended until the spend down has completed. You need to reapply but should be expedited if communication with the office was good.
Keeping your brother out of the house is a relatively easy task - if you are indeed your dad's POA, and you now have the capacity to act as such, just change the locks to the house. I myself would also go to whatever attorney drew up the POA documentation and ask him/her to draft a letter to brother, stating he is not allowed to take up residency in dad's house, and should he do so, he will be arrested for burglary.
That said - how do you, as POA, intend to keep paying for this house if dad is on Medicaid? Paying as in maintenance, taxes, insurance, HOA fees (if applicable), etc.? Could you trust your brother enough to allow him to live in the house if he were to take on those financial obligations? If so, again, I would have a contract drawn up to that effect and make him sign before allowing him access to the property. I would also have ironclad language in the contract that once dad passes, the house will be sold and the assets distributed according to dad's will, and that he, your brother, will be expected to vacate the premise at that time so it can be sold.
More importantly, I also have to question the NH's stance that the house can't be sold because dad is on Medicaid. Usually, once someone in on Medicaid and their house is finally sold, that person comes off Medicaid temporarily and goes back to private pay until the proceeds from the house are gone and then goes back into Medicaid. I would double check that with an attorney in your state who is well-versed in Medicaid procedures; otherwise, it might be a long, expensive journey for you, as dad's POA, to keep up the costs that go with home ownership, since that money will likely be coming out of YOUR pocket, since dad is already on Medicaid. And depending on how long dad lives in care, you might not be able to recoup those expenditures after the "claw back" from Medicaid is done after dad passes.
If you can sell the house under these conditions, that really might be your easiest path through this situation.
Medicaid rules can vary by state, this is why it's important to ask this question to a certified elder law attorney for your Dad's state of residence.
Next, you need to read your PoA document to see if you actually have the authority to do real estate transactions. There should be a paragraph that deals with this specifically. When I recently went to the DMV to get a duplicate title for my Mom's car, they poured over my PoA paperwork to make sure I had the authority to request such info and to buy/sell her car.
I agree with everything notgoodenough wrote to you, including questioning who is going to pay for the upkeep of the home. If you have renters in it, it will count as income for your Dad. An empty house is sometimes uninsurable. If your Dad has cognitive impairment he likely is no longer legally able to add your name to the deed (this might create tax exposure for you). This will also set off a poop storm with your sibling(s). Plus, Medicaid would likely look at this as gifting.
I think you feel bullied by your sibling but you shouldn't. You already have a legal reason to keep your sibling out: because you need to sell the house to pay for your Dad's care. If you figure out a way to keep the house you should know that Medicaid puts a lien on it that will need to be satisfied by the next owner, whether it is inherited or not, so the house will still cost whoever gets it (this is part of MERP: Medicaid Estate Recovery Program). You can review those rules in your Dad's home state to learn more specifics.
In my home state Medicaid had my MIL reapply her second year. When they saw nothing changed, she didn't have to reapply for several years, and then again (I think 5 years later) she had to reapply. You need to be very careful how you manage the house thing. For now you can tell your sibling that you are consulting with the CELA as to what to do with the house and they cannot move in until this is figured out. Period. Then stop having this conversation with them.
You can sell this home for your father and he can be in care as self pay on the funds from the home. I say this--but it is dependent on whether or not your POA is well written by an attorney and ALLOWS you to sell this for him. It is crucial all funds go into HIS name in HIS account with you as POA.
You are POA. You have the rights to manage his home for him, to rent it out for him (which changes his income) and to decide who might live in it to manage it, pay its taxes and keep things running well as a "house sitter".
See an elder law attorney for advice would be my advice. You almost certain have rights of eviction of "squatters" as well. Though if you have an out of control and uncooperative sibling you are at war with? Those things can get ugly and cause damage of all kinds.
By proceeding, I agree that I understand the following disclosures:
I. How We Work in Washington.
Based on your preferences, we provide you with information about one or more of our contracted senior living providers ("Participating Communities") and provide your Senior Living Care Information to Participating Communities. The Participating Communities may contact you directly regarding their services.
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.
II. How We Are Paid.
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.
III. When We Tour.
APFM tours certain Participating Communities in Washington (typically more in metropolitan areas than in rural areas.) During the 12 month period prior to December 31, 2017, we toured 86.2% of Participating Communities with capacity for 20 or more residents.
IV. No Obligation or Commitment.
You have no obligation to use or to continue to use our services. Because you pay no fee to us, you will never need to ask for a refund.
V. Complaints.
Please contact our Family Feedback Line at (866) 584-7340 or ConsumerFeedback@aplaceformom.com to report any complaint. Consumers have many avenues to address a dispute with any referral service company, including the right to file a complaint with the Attorney General's office at: Consumer Protection Division, 800 5th Avenue, Ste. 2000, Seattle, 98104 or 800-551-4636.
VI. No Waiver of Your Rights.
APFM does not (and may not) require or even ask consumers seeking senior housing or care services in Washington State to sign waivers of liability for losses of personal property or injury or to sign waivers of any rights established under law.
I agree that:
A.
I authorize A Place For Mom ("APFM") to collect certain personal and contact detail information, as well as relevant health care information about me or from me about the senior family member or relative I am assisting ("Senior Living Care Information").
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APFM may provide information to me electronically. My electronic signature on agreements and documents has the same effect as if I signed them in ink.
C.
APFM may send all communications to me electronically via e-mail or by access to an APFM web site.
D.
If I want a paper copy, I can print a copy of the Disclosures or download the Disclosures for my records.
E.
This E-Sign Acknowledgement and Authorization applies to these Disclosures and all future Disclosures related to APFM's services, unless I revoke my authorization. You may revoke this authorization in writing at any time (except where we have already disclosed information before receiving your revocation.) This authorization will expire after one year.
F.
You consent to APFM's reaching out to you using a phone system than can auto-dial numbers (we miss rotary phones, too!), but this consent is not required to use our service.
The laws varies by state. For example in NYS, If it is a straight forward deed the sale of the house will pay for LTC and medicaid will be suspended until the spend down has completed. You need to reapply but should be expedited if communication with the office was good.
As POA you can determine if the sale is needed.
That said - how do you, as POA, intend to keep paying for this house if dad is on Medicaid? Paying as in maintenance, taxes, insurance, HOA fees (if applicable), etc.? Could you trust your brother enough to allow him to live in the house if he were to take on those financial obligations? If so, again, I would have a contract drawn up to that effect and make him sign before allowing him access to the property. I would also have ironclad language in the contract that once dad passes, the house will be sold and the assets distributed according to dad's will, and that he, your brother, will be expected to vacate the premise at that time so it can be sold.
More importantly, I also have to question the NH's stance that the house can't be sold because dad is on Medicaid. Usually, once someone in on Medicaid and their house is finally sold, that person comes off Medicaid temporarily and goes back to private pay until the proceeds from the house are gone and then goes back into Medicaid. I would double check that with an attorney in your state who is well-versed in Medicaid procedures; otherwise, it might be a long, expensive journey for you, as dad's POA, to keep up the costs that go with home ownership, since that money will likely be coming out of YOUR pocket, since dad is already on Medicaid. And depending on how long dad lives in care, you might not be able to recoup those expenditures after the "claw back" from Medicaid is done after dad passes.
If you can sell the house under these conditions, that really might be your easiest path through this situation.
Next, you need to read your PoA document to see if you actually have the authority to do real estate transactions. There should be a paragraph that deals with this specifically. When I recently went to the DMV to get a duplicate title for my Mom's car, they poured over my PoA paperwork to make sure I had the authority to request such info and to buy/sell her car.
I agree with everything notgoodenough wrote to you, including questioning who is going to pay for the upkeep of the home. If you have renters in it, it will count as income for your Dad. An empty house is sometimes uninsurable. If your Dad has cognitive impairment he likely is no longer legally able to add your name to the deed (this might create tax exposure for you). This will also set off a poop storm with your sibling(s). Plus, Medicaid would likely look at this as gifting.
I think you feel bullied by your sibling but you shouldn't. You already have a legal reason to keep your sibling out: because you need to sell the house to pay for your Dad's care. If you figure out a way to keep the house you should know that Medicaid puts a lien on it that will need to be satisfied by the next owner, whether it is inherited or not, so the house will still cost whoever gets it (this is part of MERP: Medicaid Estate Recovery Program). You can review those rules in your Dad's home state to learn more specifics.
In my home state Medicaid had my MIL reapply her second year. When they saw nothing changed, she didn't have to reapply for several years, and then again (I think 5 years later) she had to reapply. You need to be very careful how you manage the house thing. For now you can tell your sibling that you are consulting with the CELA as to what to do with the house and they cannot move in until this is figured out. Period. Then stop having this conversation with them.
You are POA. You have the rights to manage his home for him, to rent it out for him (which changes his income) and to decide who might live in it to manage it, pay its taxes and keep things running well as a "house sitter".
See an elder law attorney for advice would be my advice.
You almost certain have rights of eviction of "squatters" as well. Though if you have an out of control and uncooperative sibling you are at war with? Those things can get ugly and cause damage of all kinds.