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My mom has dementia. Her husband is currently her caregiver, but my sibling and I would prefer her to move away. They live in a remote city away from any family. They own a 2nd property that my stepdad is trying to sell, and only my Mom is on the Deed. I have a Durable POA and would like the money from the sale of that property to go into an account for my mom's future caretaking. I believe our stepdad is trying to sell this property to boost his finances instead of going towards our Mom's well-being. Before reaching out to family law, and paying money we don't have for a consultation:



Do I have any ability to prevent my stepdad from selling the property?



My mom signed me as her POA years ago because she was worried that he may do something like this.



I appreciate any advice or response.

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See an elder law attorney on this matter at once. As her POA you have the right to charge the estate with the bill to check on this. If you have POA I cannot imagine how a home in your Mother's name on deed could be sold by anyone but her or her POA. Please do see an attorney as soon as possible.
In the case of a question about medical it is important to see MD; Financial, see an accountant; and in the case of important legal questions, about which you cannot afford to be wrong, it is important to see and attorney.
Good luck. Hope you will update us about what the law says in your state.
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TSforMom May 2022
Thanks for your reply, I really do appreciate it. They are still married and live together. He is not an easy person to deal with, let alone talk about anything that differs from his plan. With her dementia increasing, and her relying on him so much, I think he has convinced her they need to sell, and she is likely to sign anything he puts in front of her. I just wanted to see if I have any way to prevent this from happening. Again thanks for your advice and I will be looking for a good elder law attorney. Should I be looking for an attorney in the state they are currently residing in, or could I look locally where I'm located?
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Yes, get the lawyer in their state.

If they live in a community property state he may have a claim if income during the marriage was used for it, but he can’t sign to sell it on his own.

Your major problem is that he is providing care. This gives him easy access to getting her signature since she may be cooperative. The buyer has no way of telling that she may not be competent. You also need a plan for what to do about getting care if he resents any interference and discontinues care.
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TSforMom May 2022
Thank you kindly for your reply. Any insight is greatly appreciated.
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I know it is a pain to have to locate and deal with a law firm when they may be far from you however that really is in all your best interests. Hopefully you would not have to travel solely for this person. I am dealing with a law firm for my mother. That firm is easily a 3 to 4 hour drive away. It is in our same state. All our dealings thus far have been by phone and email.

On a second note if your mother does not have a will or if possibly there is an outdated one it might be best to have a new one drawn up that specifically deals with the second property. I realize this all costs money but in the long run it may be money well spent. Perhaps the second property could be sold as she ages with the will stating all of this. You should be entitled to have theses costs paid for as has been mentioned. It is important to know the rules of the state that the second property is in also assuming it is in the state she already resides in. Hope you find a solution.
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TSforMom May 2022
I really appreciate you taking time to respond and for providing advice. I hope all works out for you & your mom.
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"I believe our stepdad is trying to sell this property to boost his finances instead of going towards our Mom's well-being." 

What is your rationale for this belief?  I'm not challenging it, but it seems a lot is based on this supposition.   What proof or evidence do you have on which to base your suspicions?

I wouldn't reach out to a family lawyer; you need someone specifically in the Estate Planning practice area, preferably in a firm which also has a Litigation practice area or EP attorneys whose practice also includes litigation, just in case the situation reaches that point.

A one person law firm isn't recommended.   A firm with multiple practice areas can work together, relying on someone with expertise not only in the EP area but EP based litigation.

You could start your attorney search either with the State bar or local bar, searching for medium (say, less than 50 - 75 attorneys), to the very large practice areas (100 + attorneys).   Check out the  practice areas and credentials of the attorneys; they're typically listed on their web site.

In the meantime, gather your EP data for your mother, include a conformed copy of everything if you have it, and prepare a list of statements as well as questions to ask.    Fees, likely hourly, would also be a subject about which to inquire.

You might want to add your profile the state in which you live and that in which your mother lives.    You could locate a firm in your state, which would work with a firm in your mother's state.    That gives you the opportunity to meet and provide documents, which the firm can review while it contacts a firm with which it's familiar in another state.

Conference calls also could be a part of the two firms' interaction, if difficulties or other issues arise.   The firm in your mother's state could also be invaluable if your stepfather continues his apparent attempts to sell the house, and if injunctive relief is necessary to restrain him from attempting to dispose of the property.

I wish you luck and success in protecting your mother.  
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TSforMom May 2022
Thank you very much for taking the time to answer. My sibling and I believe our Stepfather is a Narcissist. Our mother was diagnosed with dementia about a year & half ago. At first, our stepdad seemed very open to working with us on how we could all work together and plan out the rest of Mom's life & care. This very quickly became a toxic relationship between he, myself, and eventually my sibling. Both of us have gone to stay with them, each trying to offer as much assistance to his as we could why there. We understand the burden he is faced with taking care of someone with dementia, by himself in an isolated city. In each of our visits, he has had explosive anger episodes towards us, the latter of our two visits was when my sibling visited, and the police were called as a result. Since he has been so argumentative with both of us and we aren't really in a position to offer much assistance with our Mom living so far away from both of us.

That kind of gives a little more background on the toxicity. When my Mom got married to him, over twenty years ago, he moved in with my Mom and struggled to hold jobs over the next 20 years. For about half of those years (a few now include being retired) he was unemployed for various reasons. He convinced my Mom to move away from us about a decade ago so he could go work and continue a career that he had previously worked. If he worked x amount of years, he would get a substantially better retirement package. She agreed and sold her home and they used the money from her house to purchase property in their new location.
A few years later, Mom suffered a stroke, and stepdad didn't really believe Mom. She moved away from him and back closer to us. This lasted for about 6 months and she eventually gave in to his apologies and begged her to come back. During this time, while here, is when she assigned me POA.

Over the years Mom had told me she would leave if she could, but she didn't have any money to do so. I have since been added to her bank accounts and they are basically empty. I don't have any visibility of his finances, but he has often told me how much of a struggle he is having because of this and that.

He basically has zero communication with my sibling and I now, because all he does is get angry at us. If we don't give in to his ideas or demands then we are no good to him.

We offered to move Mom in with my sibling. He would no longer be burdened with being a full-time caretaker, he could stay in the home they live in, and that we would like to sell the 2nd property and put that money into a fund for future care needs for Mom. He threatened to just divorce our Mom and leave her with nothing at one point. The last time I spoke with him, was in person and I brought this up again, and he told me all she could have is she could stay on his insurance plan and she could have her social security & nothing else, and that he had to look out for his own financial well being.
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I think I would have mom put me on the deed, then he cannot do anything without your signature.

Time for a trip for you and mom to have quality time together. This is a great time to see that attorney.

I would also record every phone call with both of them.
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AlvaDeer May 2022
I think the Mom has dementia. I think she cannot then put her on the deed.
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Tricky question. It really depends on the laws where your mom lives. See a lawyer that deals with family law - elder law would be better.
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With durable POA, daughter can act now. The POA is in effect the minute it is signed. Husband can’t sell it. He isn’t on the deed.

Time to pay a visit to the attorney who helped with the POA and provide the info on the deed to him and ask that he inform husband that funds from sale will be going to wife’s account.
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after reading responses, I am now intrigued by the question of when someone with dementia become "legally incapacitated". This is a personal issue for me because my husband admitted to my daughter he has dementia, so I assume he was diagnosed just before then,. But he has never mentioned it to me. I realized nearly 10 years ago he was slipping it it. For him, it's a slow progression. Your mother's 1 1/2 years into it seems very minor although I realize different type progress differently. From what I find in a google search, the diagnosis of dementia does not rule out the ability to sign legal documents. There are apparently more specific conditions. So your mother may be able to still add you as co-owner.
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charlotte1 May 2022
just came across this link:
Ten Legal Tips for Caregivers from the ABA Commission on Law & Aging
https://www.americanbar.org/content/dam/aba/administrative/law_aging/caregiving_ten_tips.authcheckdam.pdf
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In OUR state, a formal legal diagnosis of incapacitation allows the POA to become functional.

I had VERY GOOD LUCK in a difficult situation, by using a lawyer to establish “guidelines” concerning my LO’s affairs.
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Elder Law Attorney
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you really want elder care attorney with tis -your local dept of aging may be able to provide some assistance as might your local bar association, You probably should get a copy of the deed for the property and also work with whatever bank your mother may use to change/transfer monies she has especially if both names are on any accounts. Make sure her social security payments go into an account with only her name on it. an attorney should be able to help in case her husband tries to cancel your POA and set up a new one designating him. Hope you also have health care designee naming you and then her doctor[s] can talk with you
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TSforMom: Perhaps you should retain an elder law attorney.
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You have the POA, so talk to atty about YOU selling the property and doing as you say - in an acct for her care. Seems that would be a simple process and not much having to be spent on legal fees
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Frebrowser May 2022
The POA should give you the right to conduct real estate transactions. Read it to see if there are specific requirements.

Listing the property on the MLS lets real estate professionals know that there is someone in charge of the sale, so if your mother’s husband tries to help her to list it, it will show up as a possible issue with two sellers trying to list the same property.

This is, however, likely to break the inertia. So be prepared to deal with reactions like him trying to help her to replace her POA if she can appear competent on a good day, or deciding he doesn’t want to deal with her care. It is also not impossible that he could apply to the courts to set aside the POA in favor of appointing a guardian.

Prepare a list of questions before you meet with the attorney so you have them organized.
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Durable Power of Attorney is the key to it surviving her incapacitation., specifically the word "Durable". There are things that can give him the right to sell the property. First, does he have a Durable Power of Attorney also and is it recorded? Is yours revoked? Secondly, has be filed a Guardianship/Conservatorship to ask the court to sell the property? Thirdly, some states automatically make this property community property unless it is specifically disclaimed by the spouse. Different states have different laws.

You could check to see if the house has been listed for sale or try to list it yourself. It's possible a realtor could answer item three above. The Attorney that prepared the POA should be able to help without a fee or a minimal fee. A Title Company in your state may be able to help because they deal with real estate transfers. These are just some ideas, not legal advice.
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