If I have power of attorney for my mother who is now incapacitated, can I transfer property into my own name using a quit claim deed? 19 Answers as of March 06, 2014

She has a will and I am looking to avoid probate.

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Stephens Gourley & Bywater | David A. Stephens
You can only take actions that you believe she would take if she were competent.
Answer Applies to: Nevada
Replied: 3/6/2014
Law Office of Pamela Braynon | Pamela Y. Braynon
You would have to look at the document that gives you power of attorney to see if it gives you that power, the power to transfer real property.
Answer Applies to: Florida
Replied: 3/4/2014
Scott Goldstein | Scott Goldstein
I would not do this - it looks far too much like a fraudulent transfer.
Answer Applies to: New Jersey
Replied: 3/5/2014
Law Office Of Victor Waid
Law Office Of Victor Waid | Victor Waid
No, as the power of attorney as it would apply to real property/residence, must be a specific power affecting that property only. Incapacitated?? What do you mean by that word? Suggest you see an estate planning attorney to review the power of attorney you now have, to determine if it is specific enough to transfer the property; if mom is on some kind of government assistance, Med-ical, etc, then the government has first claim on the property for repayment of the medical costs, such as board and care.
Answer Applies to: California
Replied: 3/5/2014
Law Office of Jeffrey T. Reed | Jeffrey T. Reed
You probably could but you may be creating more problems than you're solving. Are you the only beneficiary? Are there going to be any creditor claims against the estate? If your mother is on Medi-Cal they will try to get reimbursed from her estate and will look to see if there have been any recent transfers.
Answer Applies to: California
Replied: 3/5/2014
    Gates' Law, PLLC | Thomas E. Gates
    If there are other beneficiaries, they can challenge your actions. Probate is not a valid reason to by pass the will.
    Answer Applies to: Washington
    Replied: 3/5/2014
    Danville Law Group | Scott Jordan
    Are there any other beneficiaries? Is your mother in an assisted living facility? Is she receiving MediCal benefits? There is no way to answer your question without additional information.
    Answer Applies to: California
    Replied: 3/5/2014
    Law Ofices of Edwin K. Niles | Edwin K. Niles
    You might have trouble with getting an insurable title. Better talk to a title company. You also have some tax considerations that you may not be aware of.
    Answer Applies to: California
    Replied: 3/5/2014
    Minor, Bandonis and Haggerty, P.C.
    Minor, Bandonis and Haggerty, P.C. | Brian Haggerty
    You really should not do this. Self-dealing is a breach of your fiduciary duties. Also, there are tax consequences to transferring property during life, as opposed to inheriting it. Finally, if your mother were to need assistance from the state's Medicaid program, your gifts to yourself would disqualify her for a period of time.
    Answer Applies to: Oregon
    Replied: 3/5/2014
    Frederick & Frederick PLC | James P Frederick
    Probably not. The terms of the POA need to be reviewed, as well as all the facts of the situation. It may be possible to seek approval from the probate court, as well. But generally, what you are contemplating would be considered self-dealing, and there could be all kinds of problems and repercussions.
    Answer Applies to: Michigan
    Replied: 3/5/2014
    Estrada Law P.C. | Michele Ungvarsky
    Be careful, if you transfer assets and your mother needs Medicaid in the future, she will be penalized for the transfer.
    Answer Applies to: New Mexico
    Replied: 3/5/2014
    Irsfeld, Irsfeld & Younger LLP | Norman H. Green
    No. Not unless the power of attorney explicitly authorizes it.
    Answer Applies to: California
    Replied: 3/5/2014
    James Law Group
    James Law Group | Christine James
    Absolutely not. You cannot use a power of attorney for your own benefit. If she is incapacitated, you will just have to go through probate if she did not leave a trust to avoid it.
    Answer Applies to: California
    Replied: 3/5/2014
    Ashcraft & Ashcraft, Ltd.
    Ashcraft & Ashcraft, Ltd. | Randall C. Romei
    A durable power of attorney grants authority to the agent so long as the principal is alive. It does not matter that the principal is incapacitated. If the power of attorney is a durable power and grants the authority to sell real property then you can execute a deed on behalf of the principal and record the deed. The Power of Attorney should also be recorded to prove the necessary authority. This should only be done if you are the intended beneficiary of the property under your mother's Will. If your mother will require Medicaid assistance for payment of care expenses the transfer to you without consideration will jeopardize Medicaid benefits. Medicaid can look back five (5) years from the application for benefits to determine if any assets were removed from the estate of the applicant without fair value consideration. Medicaid benefits can be withheld relative to the value of the removed property.
    Answer Applies to: Illinois
    Replied: 3/5/2014
    Kokish & Goldmanis, P.C.
    Kokish & Goldmanis, P.C. | Bernard H. Greenberg
    You should consult with an attorney specializing in estate planning and Powers of Attorney before you transfer property to yourself.
    Answer Applies to: Colorado
    Replied: 3/5/2014
    Sebby Law Office
    Sebby Law Office | Jayne Sebby
    Probably not. Your first duty is to protect all of your mother's assets. To transfer her property to your name will look like stealing, even if you do it with the best of intentions.
    Answer Applies to: Nebraska
    Replied: 3/5/2014
    Peters Law, PLLC
    Peters Law, PLLC | Mark T. Peters, Sr.
    If you are the only heir, I suppose. However, be careful because if mom is on Medicaid, it may come after the property even if you have the power. Also, if you transfer the property now, I don't think you will get the stepped up basis for income tax purposes that you would get when transferred upon death. if there are other heirs, you are looking at a big breach of fiduciary duty lawsuit. Finally, the cost of probate in Idaho is minimal and is not a reason to try and avoid it.
    Answer Applies to: Idaho
    Replied: 3/5/2014
    Goldsmith & Guymon
    Goldsmith & Guymon | Dara Goldsmith
    That causes tremendous issues and violates your duty as a fiduciary. It could even cause her to lose Medicaid. Speak with an attorney who can review the entire situation and advise you. Probate really is not that bad.
    Answer Applies to: Nevada
    Replied: 3/5/2014
    Patrick W. Currin, Attorney at Law | Patrick Currin
    Generally, yes.
    Answer Applies to: California
    Replied: 3/5/2014
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