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Louisxl1 Asked May 2020

Sibling is trying to revoke power of attorney. Any advice?

So my sister currently has power of attorney over our mother who is in assisted living with dementia after a stroke. In order for her to qualify for Medicare two houses and all of her assets were transferred to my sister. She is using our mother's account social security etc to pay my mother's rent at an assisted living facility. The rest of the family is pitching in a bit every month as well.


In order to cover expenses me and my sister had a garage sale and sold some of our mothers belongings. We also had her home appraised by real estate and intend to sell the house. Furthermore some of our mother's stocks have been sold.


Now our brother is pissed apparently and has talked to a social worker and lawyer. He has also been in contact with our mother alot trying to get on her good side and telling her he is going to get her out of assisted living and take her home. As some of his past actions have caused him to fall out of favor with her.


He had told her that we sold all of her belongings and are stealing her houses, and she seems to be buying it. And he is trying to convince my grandma to revoke my sister's POA and assign it to him. She seems to be considering it.


He is accusing us of elderly abuse for selling some of her belongings without her consent, transfering assets, and claiming the conditions at assisted living are unacceptable.


My understanding is that it is difficult to revoke and reasign POA when one has dementia. But I am worried because that seems to be our mothers current wishes and our brother is not trustworthy.


Basically I just need to know if my sister and I have done anything wrong. And does our brother have a case regarding POA

Snowfall May 2020
In my opinion, all of mom’s assets should be liquidated and placed under her name and the money used for her care. Assets, such as a house, should not be in your sister’s name. All transactions should be documented by your sister and the information shared with siblings. Does your mother have a will and who has she named to handle her estate? If your brother is a beneficiary of her will it is best to include him in ant conversations now, because he would have a case when the will is probated. If he contests a will that leaves him out he could have a case because your sister put mom’s assets under her own name. He could make a case of undue influence. It sounds as though your mom can afford good care and your sister should ensure your mom receives what she can afford. Family should not be contributing financially at this time since mom has assets.

gladimhere May 2020
Wouldn't you rather undo what you have done instead of having this hang over your head for another 50 months, hoping nothing happens that mom needs Medicaid sooner. Or sis having second thoughts on even sharing? Is it really worth 60K in stocks? If you are charged, you will be responsible for attorney fees that will run into tens of thousand of dollars if not more, that you will pay, not mom. And you might need a public defender. Strange 50 months sounds less than 4 years plus, doesn't it? So much can happen.
mstrbill May 2020
I guess they don't mind "pitching in" and rolling the dice hoping that they'll have enough to cover Mom's expenses. But you're right, Mom easily could need skilled nursing within 4 years and the expenses are going to go way up, likely around $150k a year. Hopefully they'll still be able to pitch in and pay. If not, things may get very stressful.

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Louisxl1 May 2020
Update.

So we met with a lawyer on friday, he went over our options and addressed some of the concerns brought up in this post, and said he would respresent us if need be,

-He said our brothers case against us is pretty weak, and he has nothing to gain. his chance of gaining control is zero and his chance of having power of attorney removed is slim. He is confident any lawyer our brother talked to will advise him not to pursue legal action.

-In terms of fraud and medicaid the lawyer said not to worry. Even if all financial records are subpoenaed, the case is shaky at best as they would have to prove intent. It could be fought easily. He advised us to stay the course and said that there is nothing wrong with her receiving medicaid in another 50 months. As long as the transfer happened over 5 years ago it will be irrelevant.

-He also gave us advice on how to protect ourselves legally. such as creatings a new account specifically for handling all of our mothers expenses. One of the stocks worth nearly 60k will be cashed and deposited in the account, rent from the tenant will be deposited here, social security etc.

So basically at this point we are waiting,staying the course, hoping our brother backs down. If he pursues legal action against us we have a lawyer. He is also willing to represent us in the case criminal charges, fraud, elderly abuse or anything else arise. Which is a slim possibility if our brothers intent is to turn us in and the allegations amount to anything.
mstrbill May 2020
Good to hear Louis! Good luck with everything, keep us updated if needed.
BarbBrooklyn May 2020
Louis, if you are still with us and reading this, below is a link to a site that has a pretty comprehensive guide to Oregon LTC Medicaid. It may be helpful for you and your sister to read this before you visit an eldercare attorney of Medicaid planner so that you are familiar with some of the terms and strategies.

https://www.familyassets.com/nursing-homes/resources/medicaid/oregon
Alicew234 May 2020
Louisxl- if you haven't been scared off the forum this article might help you.

In part, it says that asset transfers that might cause a penalty period can be reversed.

https://www.agingcare.com/articles/medicaid-lookback-and-penalty-period-166116.htm

Also, it is not illegal to transfer assets and apply for Medicaid. It is illegal to transfer them and not reveal the transfers on your Medicaid application.

You still better be spending any of your mom's money on your mom to avoid exploitation of elderly charges. But it sounded to me that you were doing that. Good luck.
gladimhere May 2020
Alice, this is financial exploitation of a vulnerable elder, even without medicaid.

It is a breach of fiduciary duty by the POA.

Both are felonies.
Alicew234 May 2020
Louisxl said they were using the money for expenses. If they can prove the money is being spent on expenses associated with the care of their mother, no one is going to charge them with a felony. I don't even think you can prove it's a breach of fiduciary duty unless you can prove the sister is using the money for herself. Then you are in business with a charge of financial exploitation.

It really depends on where the money is going. The sister shouldn't even use the money for care and upkeep of the houses now that they are in her own name. It's a real mess.

I also think this was just a mistake and telling Louisxl that his sister should go to jail may keep them from approaching the right people who may be able to straighten this out.

Her actions have put their mom's future Medicaid eligibility in great danger. The other brother definitely has a case that she should not be acting as her mom's POA.
BarbBrooklyn May 2020
I sure hope that this is all a misunderstanding of what the SW said.

Many facility and Area Agency on Aging SWs are great sources of advice about Medicaid and they DO advise folks about the regs.
Alicew234 May 2020
They do and they should tell people the asset and income limits and where they can get free help filling out the forms. They really, really shouldn't say "Move assets and apply again." That's insane advice. And "What could possibly go wrong? Worst case scenario you get denied again." That's not the worst case scenario by a long shot.

There were probably tax consequences for the sister's actions that they didn't consider too. Some stuff just isn't a DIY project.
BarbBrooklyn May 2020
Louis, someone needs to tell the director of the facility that their Social Worker seems to be advising folks to commit Medicaid fraud.
Alicew234 May 2020
Honestly, it isn't fraud until they successfully claim Medicaid for their mom after hiding two houses. I think the chances of them getting a Medicaid approval after this move are slim. And if by some miracle, they make it 5 years without needing Medicaid for their Mom, it also isn't fraud.

I think telling them they are frauds who should go to jail for following the advice of a "professional" is unhelpful.

But I agree that the facility should know that the social worker is giving financial advice. I think the social worker is the one who could be in trouble here. Maybe not criminal, but I would think the licensing people would like to know they are giving people bad financial advice. Actually, giving any financial advice is crossing a line.
gladimhere May 2020
I looked up the Medicaid asset limit in Oregon, it is actually $2,000.00 not $20,000.00. You have received so much incorrect information it is completely irresponsible for whoever told you.

BarbBrooklyn May 2020
Louis; the rental the the cds/iras etc are now is sister's name?

You are REALLY going to need a Medicaid savvy eldercare attorney to unravel this. I believe that there is such a thing still as a Medicaid compliant annuity that mom's brokerage account could be used to buy (of course there is a tax hit if she is taking monies out of tax advantaged accounts..)
gladimhere May 2020
If she and sis don't need a criminal attorney. Just, plain unbelievable. Maybe sis even manipulated Louis into thinking this was ok?
Lovemymama36 May 2020
Be very careful! I just went through this. When I was going to get the POA, I contacted my sister to see if she objected and she said no. When my mom fell in December of last year she developed a brain bleed and we almost lost her. I agreed to her going to stay at a rehab facility back home because I knew family was a huge part of her recovery. I live in Northern Ca so I had to come home every other week to take care of my business and make sure she had a place to come back to. While I was away, my sister went behind my back and tried to get my mom deemed incompetent so they could challenge the POA and put her in a home. (My mom was so afraid of being put in a home.) When my mom's doctor refused they worked on my mom until they got her to say she wanted to stay. I get a call the day before she was supposed to come home. It was a social worker from the rehab facility. She told me my mom wanted to stay with my sister and since the doctor said she was competent, there was nothing I could do about it. In her lucid moments they say she tells them she only wanted to visit and she wants to come back. Unfortunately she is living in my sisters house under hospice now. My sister and I no longer speak and I can't see my mom because my sister won't allow me in her home and she changed my mom's phone number so I can't even call her. My mom doesn't own anything and only has things that are of sentimental value to her.
The couple of months that I was the payee of her social security check, I made sure to document where every dime went. If you are able try to go back and list what has been sold. Give it garage sale prices if you don't know the value. Go back and try to document where all the money from the sales went, so if you have to go to court you have records. Start keeping all your receipts or get copies of receipts if you can. Most of all make sure your brother isn't left unsupervised with your mother (if you can help it.) I wish you the best. I'm so sorry you and your sister are going through this. I thought families only fought when there was money involved. I never thought my sister would do anything like this to me. In the end my mom knows I lived for her and I love her with all my heart. We are best friends and nobody can ever take that from me. Best of luck to you. Praying for you and your family.

BarbBrooklyn May 2020
Louis; are the rents from the investment property being used to fund mom's care?

Are mom's stocks/IRA/CDs being sold to fund mom's care?
Louisxl1 May 2020
Yes, yes
HelloImMinsu May 2020
So you're transferring multiple houses around the family and then trying to wait out the five year period to get her on Medicaid and stick the taxpayers with the bill?

Lovely.

Really hope you fraudsters get caught, prosecuted, and made an example of.
Louisxl1 May 2020
Didn't realize it was fraud, any advice on how to undo anything illegal we may have done?
CareGiver4Mom04 May 2020
So often, people focus on the assets, not the person or their needs. It sounds like your sister is acting in the best interest of mom, disposing of assets to ensure there is income to provide needed support and care is not illegal. If she is the POA and Trustee there is a process that must be followed and as long as she is doing things accordingly, there is no hiding of assets. Additionally, I am not sure what your mom's medical conditions and personal care needs are, but beyond the cost of living there are a plethora of other cost, from medications, doctors, personal care, maybe a sitter, etc. Your mother is not an asset. If your brother is not in the position to truly provide the best care for your mom, I would question his motives. If you know he is not acting in the best interest of your mother, and is not willing to sit down to go over the her care needs and expenses and the overall plan, then as the POA you have the right to protect her and restrain his communication and visits if necessary for a period of time. I am sorry you are going through this, I know first hand how people motivated by money can be. Keep your documentation and if you find yourself in a court situation, the evidence will speak for itself and God will be on your side. Continue to do the right thing by mom, ensure she has a loving safe environment. Best wishes.
FloridaDD May 2020
Sister is apparently not using assets to pay for moms care.  She has moved assets into HER name and then if more money than mom's SS and Pension is needed, she apparently gets money from siblings.  Sister fired the first shot over the bow when she took the assets.
BarbBrooklyn May 2020
Louis;

What sort of social worker did you sister talk to? Was sister applying for Long Term Care Mediciad or Community Medicaid?

And would you mind telling us what state mom lives in; Medicaid is a very state- specific program.
Louisxl1 May 2020
The social worker who advised us was at the inpatient rehab center where our mom was the first month after her stroke. The state is Oregon. Long term or community I'm not sure
JoAnn29 May 2020
First, sorry that people seem to get worked up over this, but there are some members that wish they had money for LOs to be placed in LTC. Medicaid has income caps. Some LOs make just over that cap and can't qualify. This is something you should check out. Does Moms SS exceed the income cap.

Your sister was wrong. Whether she is aware of it or not, she is hiding assets. This is fraud. No transferring of monies or property is allowed in the Medicaid five year look back. These transfers will need to be reversed. The houses need to be sold at fair market value. Same with cars. The household stuff...if there are any antiques they needed to be appraised and when sold, money goes towards Moms care. Regular household stuff can be sold or given away and the money put to Moms care.

Your brother is right. And no one should be "pitching in" because sister should be using Moms money for her care. Medicaid allows one house and a car. The second house would have to be sold as any xtra cars. Once the money is spent down, then you can apply for Medicaid. Which should be when ur getting about 3 months from running out of money. Be aware Medicaid does not regularly pay for ALs. In my state, they may pay after at least paying privately for 2 yrs. Some states have vouchers. So u may want to ask the AL if they except Medicaid.

You need a lawyer at this point and one very well versed in Medicaid. You may have to undue what has been done or at least show the money is there for Moms care. You may be able to use Moms money for this. Be aware too, that Moms SS will be needed to offset the cost of her care. There will be no money to keep up a house. Even though Mom is allowed to have a house, Medicaid needs to be aware of anyone living there and it can't be rented without their knowledge.

Believe me, your sister is not the only person who has no idea how Medicaid works. I think when people are setting up retirement planning, explaining basic Medicaid needs to be included. I was lucky, my Mom lived from pay to pay. The money used for private pay was Dads life insurance. Her house sold after her death. I was able to pay her Medicaid lean from the proceeds.

Good luck and come back and tell us how things worked out. We all learn from others experiences.
Louisxl1 May 2020
We understand and intend to wait out the 5 years, it has been 10 months since assets were transfered. After being denied medicaid we were advised to transfer assets re apply and see what happens. Best case scenario she would be approved worst case, she would be denied again, and that is what happened.

Of the top of my head I believe our moms SS income is 780 a month, her her total incomes are 3400. All of which is going to her care.

Medicaid will partially cover this particular AL, though they have a limit on how many they will accept at a time.
FloridaDD May 2020
I would be pissed if I were asked to chip in, while sister is holding assets.

HelloImMinsu May 2020
Read this again, and I'm just curious why exactly are you trying to get her on Medicaid by hiding assets anyway? Wanting to get a bigger inheritance or something? Medicaid will limit her facility options. Brother is the good guy in this situation as far as I can tell and is trying to protect a vulnerable senior from financial exploitation.
Alicew234 May 2020
There is nothing in the post to suggest Louisxl1 and his sister are misusing the money. They are selling possessions (not a Medicaid issue) and stocks and they may have used that money to pay for the assisted living. They plan to sell the houses but they have not said they are then planning a trip to Europe with the proceeds.

Planning for Medicaid applications should be happening while you spend down the assets. Everyone with an elder in care who isn't filthy rich should be making sure they will have a clean Medicaid application. It's not anything sinister.

I think it's much more likely that they are doing their best but making mistakes. I think the "Medicaid fraud" posts are out of line. People come here for advice. We've all already got plenty of shame, thanks.
gladimhere May 2020
Get an elder law attorney to advise. Your mom can own one house and one car. Assets can not just be transferred to sister's name to get mom qualified. Mom has assets to sell and pay for her care. Everything must be sold at market value to be used for mom

Is there a reason you think that government programs, that are paid into by me and everyone else, should pay for mom's care?

If I were your brother I would be calling Adult Protective Services, the police, the district attorney, and yes, an elder law attorney to have guardianship and conservatorship assigned to a third party to have everything you and sis have done audited. From what you say, emergency guardianship and conservatorship may be sought and easily awarded, by a court, to APS. Mom needs protection from you and sis. What you are doing is illegal and a felony.

Hopefully you and sis can get this fixed, everything undone, without long term implications.
Louisxl1 May 2020
We were told by a social worker that her assets had to be under 20k and that the state rarely sells things at market value. Though maybe we should have been advised by a lawyer rather than a social worker. We were told to transfer assets and re apply.

Third party having control might be the way to go, as our brother is the last one we would want in control. There is ample reason he was never given POA in the first place.

Previously our brother couldn't even be bothered to call our mom, now that he can't work due to corona he seems to be in constant contact.
mstrbill May 2020
O my goodness, its not that you are doing anything wrong, you are doing it all wrong! As others have said you should have an attorney do it for you. First, all of Mom's assets need to pay for her care, not yours. I don't know why you are "pitching in". If Mom's assets were transferred to sister, then sister needs to pay, and honestly brother did the right thing for contacting a lawyer. Mom's money pays for her care, and if she transferred money within the last 5 years she will not be approved for Medicaid until all that is sorted it out and satisfied. Your brother absolutely has a case if Mom's funds were handled inappropriately.
Louisxl1 May 2020
We were worried about losing the houses, as our moms income and benifits was not enough to cover her care.
Alicew234 May 2020
You need to sit down with a lawyer who specializes in Medicaid planning. (I assume you are trying to qualify your mom for Medicaid.). Transferring the houses out of her name sounds like a big mistake. Possibly you can fix it.

Medicaid would have allowed your mom to keep a certain amount in home equity even if the chances of her returning to the home were remote. Once you sell, all that money will be considered available for her care and Medicaid won't pay a cent for her care until it has been spent down. This is true even if the sale goes through with your sister as the owner. (Unless she transferred these houses into her own name over five years ago.)

You need to talk to a lawyer. You and your sister are making some big mistakes.

And for what it's worth, the only one who can assign POA is your mom. If she is no longer capable to do that, your brother's only recourse is to file for conservatorship or guardianship with the court. Your grandma cannot revoke anything.
Louisxl1 May 2020
The properties were transferred to my sisters name in July of last year. We applied got denied re applied after transfering property and were denied again. As we understand we now have to wait out the 5 years,

As of right now our moms income between SSI, rental home and everything is $3400 a month, her rent at assisted living and memory care is $5200. We are currently making up the difference, which is why we are looking into selling the house and have sold stocks.
HelloImMinsu May 2020
It sounds like your sister is committing medicaid fraud. That's a serious crime, and you could be considered an accessory if you willingly participate in hiding assets. Their are both civil and criminal penalties for such crimes.
Louisxl1 May 2020
That sounds bad, I was unaware, what would you suggest as the best course of action to avoid or limit legal trouble
BarbBrooklyn May 2020
Are trying to get mom qualified for Medicaid?

Medicare is available to everyone over 65, but it does not pay for long term care. Make sure that you all understand the very substantial differences between these two programs.

As to Medicaid, in most states, there is a 5 year look back period for financial records. Assets must not have been transferred or gifted. A house, a vehicle and most personal belongings are not "countable" assets for Medicaid purposes.

Are you working with an eldercare attorney on the Medicaid application? Or at least the SW at the AL to understand what is a countable asset and what sorts of transfers are allowed?
Louisxl1 May 2020
Yes, she is doing as she was advised. We applied for medicaid and she was denied due to her assets. We talked with an SW, she told us to transfer her assets re apply and see what happens. Worst case scenario we would have to wait the entire 5 years.

Her assets include 2 houses, one of which is a rental that we had appraised

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