Posted on 09/27/2016 5:12:42 PM PDT by lyby
Dear FReeper Family,
I, my family and I, have reached an impasse. We live in Alabama, and my mother and my only sibling, a younger sister, and her family live in Virginia, very near to Mama.
Unfortunately, I find myself needing legal counsel in order to determine how best to take care of Mama.
If there is a fellow FReeper who can communicate privately with me, I would be extremely grateful.
I have no idea what questions to ask or to whom I should pose those questions.
As of now, I am in research mode and any assistance is most thankfully welcome.
Sincerely,
~ lyby
I so much appreciate the links you shared!!
I am still not a lawyer, but if Mom has already been declared non compos mentis, then 1: dozens and dozens of decisions as to her future have been removed from your control. 2: It becomes incumbent upon you to gain State approval for literally everything you or your sib does affecting her or on her behalf from here on out. Every vase, every fork, every piece of furniture disposed of has to be run past the admin who will be charging you for every phone call or document. 3: you and your sib now have to be very careful of elder abuse law in your state and you have furthermore have someone watching you and your sib who might well think they have something to prove. And who has a “free shot” at anything they might wish to come up with as they are automatically ratified by the state. 4: virtually all opportunities for estate planning are gone.
I hate to be the bearer of bad news but this is bad news. In CA, admittedly an expensive state, this all amounts to perhaps 1.5 years and about $40-$50K of extra costs that will come out of the estate before you see anything. I am not saying that you gaining whatever you think you should from her estate is any sort of priority for you. I am saying that any sort of dispute of size between you and your sib is $1000 an hour with 2 lawyers and the administrator and attys cheerfully billing for their time and getting paid first. Consider carefully, relative to the size of the estate whether any of it is worth it.
I spoke about how my personal situation was handled. But I also get involved in other situations, because my brother is frequently appointed attorney-in-fact to many estates that fall into dispute and I assist him on some cases. I have cleaned out hoarder houses. We have managed extensive remodels, removed kilotons of junk from derelict houses, extensively researched family trees where heirs have continued to live on houses where the original owners died in 1908 and the heirs married, divorced, had kids, died, kids died, heirs went to prison, died in prison, transferred fractional ownerships to others, sometimes defectively, house burned down, with child support and mechanics liens across multiple states. So I have lots of experience in this area. Most of it is pretty damn gritty.
Oh. My.
What avenues should I pursue to gain “state approval” to proceed on Mama’s behalf?
What a freaking hornet’s nest.
In the words of Miss Scarlett, “After all, tomorrow is another day.”
G’Night, ya’ll.
And thank you... <3
I can tell you that I have seen situations where the parents’ failure to work this stuff out in advance has not only obliterated the estate assets, but has tied them up in court for years, and all the grief happened anyway, except now, under duress and time pressure and the kids have jobs and lives they cannot interrupt to take care of the mess. For which THEY do not get paid but EVERY OTHER party DOES get paid. As I have become a sort of amateur lawyer in this area due to my multiple experiences, I can tell you that parents not working this stuff out in advance in excruciating detail are doing an incredibly crappy thing to their offspring and in many cases destroying the intrafamilial relationships they would gladly sacrifice all their estate assets to see go right. It’s absolutely the crappiest thing parents do to their children. It can cost astronomical amounts of money and tie up estate assets for years. And all the time, the vultures are carving out chunks of meat and they get theirs first.
We just finished a very contentious estate settlement in July where two parties pissed away over $350K in complete stupidity lasting a year and a half that could have been avoided in a 5 hour mediated sit down (which we strongly suggested from the outset) EVEN IF they hated each others guts (which they did) and all the household crap they fought over could have been bought for $25K paying full list price if they JUST HAD TO HAVE that 19th serving bowl and 11th set of silverplated eating utensils and trashy Christmas ornaments. It would have been far cheaper for them to dump it all in the garbage and replace it by taking a chauffered limousine on 20 trips to shop for it.
And I can also tell you that as miserable as they made every action done on their behalf and as stupid as their childish demands becamse, I and every other party responsible for working the thing out had no compunction charging aggressively even though I/we never start out that way. These two were simply experts in making everyones’ lives miserable. The other sides’ attys saw this and encouraged unending squabbling, impossible demands, and court appearances clearly designed to run up their bill, very unethically.
You have to do a few things relative to the very few pieces of choice you have remaining. Everything you and your sib do from here on out that smells of any kind of dispute is a direct invitation for adminstrators and/or attorneys to impose any sort of bills they like and can and they WILL get paid first.
If your Mom is NCM, then they essentially have complete discretion as to what is done with her and have the full force of the law to enforce their decision(s). That is the reality. She’s frankly not your mother any more. She’s a ward of the state. You have no decision power over her.
You and your sib have to decide at once to cease all forms of contention and you’ll probably have to write and have notarized letters so stating and submit to the conservator. BE PROACTIVE in making him/her your friend and be sure you make ultra clear your intention to MAKE THEIR JOB EASY by fully cooperating.
You want to stay on top of the process whereby a state appointed conservator is named. Make contact with and establish a relationship with that person. If Mom needs eldercare right away, find out where she is to go and inspect the premises. There were places I checked out for my folks that I could not enter for the smell. There were places that charged thousands more per month than others. If she has dementia, there are places where they will want you to literally hire a 24-hour attendant such that if she decides to wander away at 3 am when the live-ins are all asleep, they will be protected.
I truly feel rotten that I am painting this picture of doom for you. It is how I have found things to be. Your Mom’s estate is quite simply a target of opportunity for others now. It is a sickeningly predatory state of affairs and everyone involved (except you) has done it hundreds of times and has all the moves down.
The State will now decide where she goes if she is to go to eldercare. The state-appointed conservator will send her to his/her buddy’s nursing home, regardless of quality or cost or level of care. The admin will give the RE listing to their buddy realtor who will expend little or no effort working to get a good market price for same. If you or your sib wish to buy that house (if there is one) you’re going to have to get your funding together and you’ll likely be prepared to buy it at a competitive auction where it is exposed to the public, with legally mandated overbids.
I guess I don’t have to tell you that such a house might have been half yours for free in a normally-willed transaction. It STILL might be.
If you don’t like the conservators’ choices, you will have to step right up to the plate and pay for and remain legally obligated to pay for her eldercare and eventual funeral costs and write that check immediately. If she is to be cremated, you may have to prepay those expenses.
You absolutely CAN NOT “proceed on Mama’s behalf”. It’s out of your hands. And the State now has an implied lien on all her assets to pay for all this. If she had a will, the state will attempt to execute its’ terms. But I cannot stress enough, anything you do, however innocently, however you may imagine it to be constructive or humane, potentially risks running afoul of elder abuse laws which are now highly developed. And if the state (in the form of some irritating clerk looking to make a name for him/herself) takes a dim view of whatever you do, even the very idea of acting on your own, they can charge you and arrest you and imprison you, and then you can pay $35K in attys’ fees to get out of that situation.
Please don’t take this lightly. You have no power nor discretion to “act on her behalf” and you risk felony arrest and conviction thinking you do, and this is exactly the type of thing DA’s LOVE to pat themselves on the back for. Get that thought out of your mind at once.
Prayers for you.
Estate attorneys can be a mixed blessing too. My most recent experience with one was pretty strange. Fortunately I caught wise to the fact that I could complete and file the paperwork directly with the surrogate court (mother died intestate) and although a bit complicated, I managed to get that done quickly and correctly - saving myself MONTHS of waiting on the attorneys office to do it, and saved probably five thousand minimum. My mother had very little, but I had told her I would take care of it a certain way - and I did. It was a big risk financially to us (her property was basically condemned)and the extended family got nasty (of course), but I motored on. In the end I did have to hire that attorney to take care of the real estate closing as that was required by the court (NY), but I took as much of the legwork on myself as was legal.
I managed to obtain the right to administer the estate, evicted the three “lodgers” (very tricky in NY) AND sell her house, all in just under six months. The deed to the new owner was recorded six months to the day after her death.
Were there people pissed at me? Hahaha - oh yeah. There was barely enough to pay off her debts and scant mortgage, but others thought there should have been a payday for themselves. Ugh. It got very ugly.
You know, I reread your post and it spawned some thoughts.
You get my point about planning out your estate with detail and care. But there is no particular need to reduce your lifestyle to minimalist out of a fear of complexity. Those two “urges” really do not connect with each other.
One of the great, great provisions of the tax (and inheritance) law is the ability to pass on assets tax free. It is this which should be harnessed. As a side note, many parents get the idea that real property should be transferred to the children or childrens’ names via some titling action, or “adding them to the title” or quitclaiming property to them.
Without question, this is the single biggest error you can ever make in property transfer. This turns property that can be transferred tax free into a gift, generally taxable to the donor (you) and kills the inherited basis aspect. A terrible mistake, often done out of “wanting to avoid complications” that typically destroys many tens of thousands in value. This is the perfect example of thinking you are doing “the right thing” and causing immense damage out of ignorance of the law.
My point: Simplify the administration of your estate, yes. Crush your own lifestyle thinking you would be doing that thereby: no. Get the “smarts” of the operation into the format of a carefully crafted estate plan that becomes the orchestral score for how things are carried out when the time occurs. All the thinking and planning go into creating that plan, and they can be complex and they can and will cost money to construct and those plans and preparations have to be done with precision, for example, getting property and assets into a trust or trusts. But the idea is that 1: the map is not created under duress or time pressure. 2: the map is created while you and your spouse have the ability to construct it. Once one or the other is declared NCM, the complexities and costs quite literally explode.
You need to keep this open OR write to freepers you trust privatly...
Give a few details and others can share their experience... you can pick and choose between answers.
That said, there’s a good chance you already know the RIGHT choice and either want confirmation or the courage to follow the correct path.
Sharing will help...
(your last post and my last post crossed-—I was responding to your #39)
Excellent that you have some exposure to “the system”.
Absolutely, there are good and bad estate attorneys. The whole process of picking an attorney is quite arcane, to me. You and I have no means to evaluate them. We don’t even know what question to ask.
It sounds like you had favorable results, congratulations. I think you probably realize that in that case there were not enough assets to make it worth it for the vultures to gather and harass you/it. Let me be clear: They know.
If you feel elder abuse is happening contact your Governors’ office... It’ll be investigated by the same folks who would investigate any elder abuse but since the request comes from ‘on high’ you’ll get better and faster help.
“And the State now has an implied lien on all her assets to pay for all this”
This.
Once a person officially becomes a resident in a care facility, a burgeoning industry, their assets are documented with the state. If (when) their care costs exceed insurance/benefits and ability to self-pay, then the state does have a lien on all of their assets. Will or no will.
I warned my husband about this in time to have his grandmother have the “talk” with her estate planner, and she immediately “sold” husband the home that she had planned to leave him in her will. It is a good thing she did. Back then NY had a three year look-back, but shortly after she went into care, it was changed to a five year.
With the emergence of nursing care facilities as a powerful industry, the families are at a distinct disadvantage. My father spent the last five months of his life in one, and I can’t stress enough how uncaring we found the administration and some of the nursing staff to be. No matter how we tried to charm and how we bent over backwards to be reasonable we were frequently misinformed. When he died recently, the staff was HORRIBLE.
“Once a person officially becomes a resident in a care facility...their assets are documented with the state.”
More specifically, under state control, eg; as a ward of the state, as one declared NCM. This of course does not happen if you place your Mom into eldercare and pay for it. This is the terrible danger of a person being declared incompetent. The state jumps to the head of the line in terms of control, in terms of ownership of estate assets, and all opptys for intelligent estate planning are lost. It is a terrible, terrible threshold to cross and it is emotionally wrenching because whatever it is you feared before that happened, now it’s being forced on you.
The downsizing thing - to a fifth wheel, or a smaller home - is more to do with not having a “thing” to leave to one kid or the other in a will, or for the legal buzzards to pick over. We WANT to go more minimalist actually, because we do not want to remain in NY when we retire (taxes and utility costs), and in a big fifth wheel we can move about if we become disenchanted with our locale. We have already begun garage sales, LOL, to thin out our “stuff” so that ten years from now we won’t have to do it all at once, nor will the families have the burden.
Now, the house that my mother owned was originally part of an “estate” (owner died a resident of a nursing home) that was the interest of a group of related beneficiarys. There were multiple attempts to sell it, but as none of the interested beneficiarys’ would agree on the offers, the house basically ended up with “the county” to satisfy nursing care costs of the deceased owner. My mother actually brought the house from the county department of social services in conjunction with the administrator of the estate. He received a tiny fee - but because all the other beneficiarys’ had lost interest as the house (already in bad shape) had become a near valueless ruin, there was no meat on the bones left for them to have a cut. The sale to my mother only generated enough to cover the original owners debt (lien) to the county/state.
The way I was appointed Administrator to my own mothers estate - well, I didn’t have to deal with approval from the other beneficiarys’(my sibs)for the sale of the house, I just had to have the Surrogate Court approval of the offered price, which saved the day really. Looking back, I don’t recall how I pulled that part off. :)
In NY if you were to go into nursing care, and your bank account went empty paying for care, then any assets (house and car for example) will have to cover whatever soc security/medi-caid will not. The five year look-back at ‘transferred’ assets allows the state/county to place a lien on those assets against whatever costs are not covered by the patient outright. If the patient dies AFTER that five years window closes - any ‘transferred’ assets are safe. Say the patient did not transfer any assets to loved one, but instead left them in a will. The main way those assets are kept out of the hands of the state are if they were put into a certain type of trust ahead of time. Few people do that, and a regular will doesn’t protect assets from nursing home costs/state liens.
So, when it came to a situation like my husband and his grandmother, it was prudent for her to “sell” him the house for a teeny amount, and he gave her lifetime right in the deed. That was the only way to protect it. Since she lived seven months after her savings were exhausted (six years in care)if the house had not been transferred the county/state would have prorated the non-covered portion of fees owed to them for her care for that seven months, and placed a lien on the house in that amount. So, my husband would likely still have inherited it via the will - but it would have had a lien on it for about one third the assessed value of the house. A future sale of the house would have meant handing that money to the county/state.
When my husbands grandmother went into nursing care, she started out as self-pay and was very competent. That was a godsend. She hadn’t updated her will, etc. for over a decade - and much had changed. So we were able to get her through that before she became an official ‘resident’. In other words, before the asset list was required by the nursing home.
When my own dad went in, well, he had zero assets. Which was a godsend.
My heart goes out to those who have to deal with the situation of their parent being declared incompetent, and the state taking control. Devastating all the way around.
Much gratitude to each of you for sharing your insight related to my situation.
Thank you again to each of you who replied with uplifting and informative comments. I have hired an elder-care attorney from Virginia, who will represent me on behalf of my mama’s best interests. All I can say is what a shame for the necessity to involve the legal system in the care of one’s elderly parent. What a shame. (Follow the perceived financial gain from parties that do NOT include me.)
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