Can I sign and use the car for my own needs?

Asked over 1 year ago - Wheaton, IL

Hi, My brother has been in a nursing home for about 5 years. Owning nothing, he is on Public Aid. Cleaning his apartment, We all forgot he had an old car which has not had plates on it for 6 years. I have power of attorney and I want to give the car to my daughter. The car is not worth much, but If I sign it over to myself, will public aid be able to take the car away?

Attorney answers (3)

  1. Matthew Allan Quick

    Contributor Level 13

    9

    Lawyers agree

    Answered . A valid power of attorney would allow you to make the transfer, so long as that is a power that is included. If you are talking about transferring the car for less than it is worth, then you may be talking divestment (gifting) and setting your brother up for disqualification if on a needs-based program (i.e. Medicaid). If the car is sold, the money coming in to his estate may cause the same result.

    For these reasons, it would be wise to consult with an elder law or estate planning attorney before taking any further steps.

    Best of luck!

  2. Judith Anne Schening

    Contributor Level 14

    6

    Lawyers agree

    Answered . I agree with my colleague that before you do anything with your brother's property, you should consult an Elder Law attorney who can advise you of the effect it would have on your brother's Medicaid eligibility. That issue aside, the power of attorney would have to specifically include the power to make gifts of your brother's property for you to give it away or sell it for less than fair market value. If you do not possess that power, then giving away his property could be a breach of your duty to use his property for his benefit.

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps.... more
  3. James P. Frederick

    Contributor Level 20

    4

    Lawyers agree

    Answered . I agree with my colleagues, and to follow up on Attorney Schening's response, unless you provide fair market value to your brother's estate, I do not see how this would not be an example of self-dealing and a breach of fiduciary duty. You should consult with an elder law attorney. You will want to discuss possibly establishing a special needs trust if the value of the car would be a problem in terms of your brother's Medicaid assistance.

    James Frederick

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ******... more

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