Property is living estate person to receive the property after death. If the person has altizmers and meds arent helping her. Stepson is to get house at her death. He is also her power of attorney her youngest son is also power of attorney didnt know until yesterday. Can the stepson legally quick deed the home to himself if she is still alive because she has altizmers and is going to be placed in a facility. He feels he should have home now. Her sons feel it should 1. The stepson buy her 1/2 out or 2. They sell the home to get money for her care.
If Medicaid is applied for, it really gives the state an all access pass to everything legal and financial on mom. Really nothing nowadays can be hidden or done without eventually surfacing.
And mom is going into a NH and will be needing $ to pay for the NH, right?
If she is going to apply to Medicaid, the house usually is an exempt asset for Medicaid as long as she owns it. Having it as a LE means that she still owns it as she controls it till she dies then in theory it goes to step-son as the remainderman on her LE. The terms of who gets house as per the LE only matters after she dies.
There will be - imho - 2 issues involving Medicaid:
1.once mom is in a NH & on medicaid, all monthly income (like SS, retirement) must be paid to Nh as her co-pay or SOC (share of cost) under Medicaid's rules. All mom will get is small personal needs allowance ($ 35 - 115) a mo. All house expenses will need to be paid by someone from day 1 of medicaid until past her death when LE & any estate recovery dealt with. Taxes, insurance, maintenance, etc. So does someone want to do this for po$$ibly years & on property they do not own? Remember terms of the LE only happen after she dies.
- the LE on the house may or may not be an issue for Medicaid's estate recovery program (MERP). Some states are now doing recovery from LE's; while other states have it so that if the LE was done 5 years before medicaid application, it is outside of recovery as LE transfer outside of probate. You need to take the LE and any other paperwork to an elder law atty to clearly find out just what your state's laws & approach is for MERP. The terms of who gets property as per the LE only matters after she dies.
If mom or step-son as DPOA transfers or sells the property, it needs to be at whatever is Fair market value or appraisal of property if she is on Medicaid. If tax assessor 150K, then sold at or close to 150K.
If property is just transferred for zero or less than FMV, Medicaid can & will place a transfer penalty on mom. Transfer penalty means Medicaid will not pay for her care for a period of time based on property value and what Medicaid's daily rate is. All real property is recorded locally and in the states database, it will show up & penalty issued.
Keeping a home as an exempt asset for a parent in a NH is allowed by medicaid but realistically for most just not feasible and the house gets placed on the market within a few months.
But it is not necessary for the agent to deed the home to himself to sell it to obtain money for the care of the person who granted the POA -- assuming that the POA gives the agent power over real estate matters and is recorded with the county clerk of the county where the real estate is located. He need simply sign the deed as "_________, agent for __________ under a POA dated ___________."
Does your mother have any other substantial asset or income that could be used to pay for her care, or is the value of the house it?
This isn't my area, but in a few hours more knowledgeable people will be along with better answers, I'm sure.
Meanwhile: 1. try not to fall out with your step brother over this - it can get very bitter, when really all any of you wants is for your mother to be well cared for and to do the right thing. 2. If there are likely to be Medicaid applications ahead it's no good his trying to be clever with your mother's assets. You'd better get professional advice on how best to proceed, but as I (very imperfectly, I'm afraid) understand it on your mother's passing Medicaid would have a claim on her estate so your stepbrother would either need to sell, or pay compensation to them in some other way, at that time anyway.