My sister wants to sell my fathers home and have him move with her, she has power of attorney. She has taken a mortgage out on his home he has no idea about. Her only reason for wanting him to move with her instead of going to a nursing home is because she relies on a portion of his income. He has clearly said HELL NO when asked if he wants to move with her and stated he wants to be at home but if he can't (I can no longer take care of him) he would rather go to a nursing home. I'm handing my own medical issues and will not be able to do anything of any kid for at least a month. What should I do to prevent her from selling his home that will disqualify him from getting Medicaid to go to a nursing home for 5 years? She’s in her 60’s and may not be able to care for him for 5 years.
Elder Law Attorney
This sounds complicated and you ought to seek the advise of a Michigan elder law or estate planning attorney. Yes, you might be able to report this matter to APS, recognizing that some offices are more active in these kinds of potential financial exploitation issues than others. If your father is competent then the agent has no power to make him do anything he doesn't want to do. For that matter, if competent, he could revoke the power of attorney. If, in fact, the agent has mortgaged the property without your father's permission or knowledge, then there would be a basis for a lawsuit against the agent for breach of fiduciary duty. If your father is not competent, then you might very well have to file a guardianship petition to have a guardian appointed, thereby trumping the power of attorney and possibly giving that guardian the authority to initiate a breach of fiduciary duty claim against the agent. In any event, I do strongly recommend consulting with an experienced elder law or estate litigation attorney. You ought to use the "find a lawyer" tab to look for local attorneys here on Avvo that may be able to consult with you. I wish the best of luck with this matter.
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Estate Planning Attorney
I agree with Mr. Davis' answer but would also add that violating the fiduciary duty of the POA can also be a crime. A POA does not allow a named person to legally do what they want with the funds. The fiduciary duty is just that, a duty, and if they are using the POA for their own use then that can be considered a crime.
I agree that if your father is competent then he can revoke the POA and she will not have any power. He would also have to let all of the financial institutions that he has (and she has) been using know his intention to revoke the power.
There is certainly a lot at stake and you should consult with a qualified probate attorney.
Every case is different. As such, the answer cannot be considered legal advice nor can it constitute an attorney-client relationship.
Estate Planning Attorney
If he is competent-he should revoke the POA and issue a new one.
It is a crime to use a POA for self benefit.
I would recommend seeking the services of a medicaid attorney.
The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.
Elder Law Attorney
Although my colleagues properly focused on the POA aspect of you question, I note that it seems to be driven by some confusion regarding the Medicaid eligibility rules. The five year period to which you refer is a lookback period, meaning that with a few specific exceptions the transfer of any asset for less than fair value during the five year period immedicately before making application for Medicaid must be reported. The mere act of selling your father's house would not render him ineligible for Medicaid for five years. It would render him ineligibile because he would be converting an exempt asset into cash which would make him over resourced. These are two different things. He would have to spend down his cash to become eligibile. If he gave away the proceeds from the sale instead of spending them on himself, or if he sold the house for less than fair market value, a penalty period would be imposed if he made application for Medicaid within five years. That penalty would equal the length of time that he could have stayed in the nursing home if he used the money to privately pay for his care. While you should be concerned about what your sister is doing, it m the consequence to your father may not be a five year period of ineligibility. These are general rules based upon federal law. The way it actually works in your state may be different. I recommend you visit privately with an elder law attorney who is experienced in Medicaid planning in your state, or the state in which your father resides, to find out what your options are. Not only should you be able to put the brakes on sis, you may find out there are a lot of things that can be done to help dad.