What is the law regarding selling my mother's home after she is put in assisted living? 13 Answers as of December 06, 2011

My mom owns her home. She has been diagnosed with dementia. What is the law about selling her home with the prospect of her having to be put in an assisted living/nursing home?

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Goldsmith & Guymon
Goldsmith & Guymon | Dara Goldsmith
I think you are inquiring about what options exist for your mother with regard to Medicaid planning. This is a fact specific inquiry. Your mother's entire financial picture needs to be reviewed with an eye toward appropriate planning. She may need a guardianship to facilitate this type of planning.
Answer Applies to: Nevada
Replied: 12/6/2011
Law Office of William L Spern | William Spern
You must establish a guardianship and conservatorship for her. You would then petition the court for authority to sell the house.
Answer Applies to: Michigan
Replied: 12/5/2011
Martin Barnes - Attorney at Law
Martin Barnes - Attorney at Law | Martin Barnes
If you are able to determine that selling your mother's home would not be detrimental to your mother's interests, you may ask the court to appoint you - or another appropriate person - as guardian. As guardian, if you determine it is in your mother's best interest to sell the home, it could be sold. All actions must be taken with the best interest of your mother in mind. For example, if your mother is placed in a nursing home and seeks assistance from Medicaid, there may be a claim against your mother's home in which case selling her home may not be advisable.
Answer Applies to: Indiana
Replied: 12/3/2011
Charles M. Schiff, Attorney at Law
Charles M. Schiff, Attorney at Law | Charles M. Schiff
I assume from your question that your mother will need government assistance to pay for nursing home care. There is nothing to prevent the sale of her homestead as long as the sale is for "fair market value" and the proceeds are available to help pay for her care. It is the attempt to give away assets that would otherwise be available to pay for her care that would likely create a problem.
Answer Applies to: Minnesota
Replied: 12/3/2011
Minor, Bandonis and Haggerty, P.C.
Minor, Bandonis and Haggerty, P.C. | Brian Haggerty
If someone has a power of attorney that gives them the power to sell the home, they can do this. You may need to petition the court to be named conservator so you can handle financial matters. In either case, you must act only in your mother's best interests, and manage her money to get the best care for her. If she will spend a long time in assisted living, it is likely that she will spend all her assets for her care. Incidentally "diagnosed with dementia" does not mean incapacitated. You should continue to the extent possible to involve your mother in decisions and respect her wishes.
Answer Applies to: Oregon
Replied: 12/3/2011
    The Law Offices of Laurie E. Ohall, P.A.
    The Law Offices of Laurie E. Ohall, P.A. | Laurie E. Ohall
    You really should speak to an elder law attorney before you do anything because selling your mother's home could affect her receipt of Medicaid or VA benefits (if she is eligible). Also, if you do not have a durable power of attorney that allows you to specifically sell her homestead, you will not be able to do anything without a guardianship (assuming your mother is incapacitated).
    Answer Applies to: Florida
    Replied: 12/3/2011
    Law Offices of Lorenzo L. Angelino | Lorenzo L. Angelino
    You must file for an Article 81 Guardianship over your mother's estate in order to be appointed power of attorney (if there isn't already one out there) so that you may sell her property to provide for her care.
    Answer Applies to: New York
    Replied: 12/3/2011
    Martinson & Beason, PC
    Martinson & Beason, PC | Douglas C Martinson II
    There are many levels to the questions. One, does she have a Power of Attorney to allow someone to sell it for her. if not, a Conservatorship would have to be filed in Probate Court for her (assuming her dementia is such that she is unable to manage her financial affairs). The court would also have to approve the sale of the house (the need to sell it and the price). Any money would have to be used for your mother's care. Assisted Living does not qualify for Medicaid so any expenses of the ALF would have to be paid with her funds (including the sale of the house). Once her assets are below $2000 (there are some items she is allowed to have-pre-paid funeral, etc) she could qualify for Medicaid. This assumes that she is not married and does not have a disabled child living in the home.
    Answer Applies to: Alabama
    Replied: 12/2/2011
    Harville-Stein Law Offices, LLC
    Harville-Stein Law Offices, LLC | Dean D. Stein
    You will not be able to sell your mother's home unless she is either competent and willing to sell it herself, you hold a Durable Power of Attorney that she gave you before her disability AND that DPA has in it the power for you to sell real property, or, you go to probate court and petition for Conservatorship and then have the Court approve the sale ofthe home.
    Answer Applies to: Alabama
    Replied: 12/2/2011
    THE BROOME LAW FIRM, LLC
    THE BROOME LAW FIRM, LLC | Barry D. Broome
    I can only assume that the sale of the home was done legally and that the proceeds were used to pay her living expenses. If this is the case then nothing improper has been done and the sale will help finance her living expenses.
    Answer Applies to: Georgia
    Replied: 12/2/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    There is no one law as to this. There are many issues, and you need to see an elder care lawyer to evaluate what you can )(and cannot) do.
    Answer Applies to: Georgia
    Replied: 12/2/2011
    The Schreiber Law Firm
    The Schreiber Law Firm | Jeffrey D. Schreiber
    The law is that she has to sell the property and sign the Deed. If she has dementia, she probably does not have the capacity to execute a Power Of Attorney, and you would have to have a conservatorship set up through the Probate Court.
    Answer Applies to: California
    Replied: 12/2/2011
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