Mom has dementia since March 2016, crazy sister had Mom change her Will to leave New Hampshire house to her only. Mom has 7 other children. I am her legal guardian, (she lives with me in Oregon) can I change the Will ?
Your question raises lots of issues. By all means, seek legal advise, especially since State laws will vary. However, I have some thoughts.
First, when you say you are her "guardian," I'm assuming that legally you are the appointed "attorney-in-fact" under a DPA (durable power of attorney.) In my Mom's case (and there are 6 siblings), after Dad passed back in the early 2000's, Mom's regular checking account was changed to a joint account with one sister added. This was mainly for convenience -- Mom was having trouble handling bills, etc. and eventually, sis set up online bill-pay to handle routine expenses. That account was never real big. (Remember that a joint checking account typically has right-of-survivorship provisions, meaning that upon the death of either signor on the account, the money will pass "by operation of law" to the survivor. Having a large joint bank account can seriously mess up an estate plan, because that money is passing automatically to an individual, by operation of law and outside of probate, and not pursuant to any provisions in a will; thus a person's intent for ultimate distribution of assets upon death can unknowingly become ineffective.)
But most of Mom's assets consisted of a brokerage account and her house, which was paid off. And because I knew the broker and had dealt with him frequently before Dad passed, he typically called me to discuss investments. At first I'd always run his suggestions by Mom, but she always said that whatever the broker and I thought was fine. Eventually, I simply quite calling her. And the broker was honest and good, and the account did well. I never got any "compensation" for being the go-between but never expected any. I also dealt with her accountant to make sure her taxes were getting filed and paid. All in all, kind of a pain. But one of my sisters was doing A LOT of day-to-day things, like grocery shopping, taking Mom to dr. appointments, laundry, etc.
Eventually, as Mom began to decline, she agreed to move to AL. We sold her house (she actually signed in her own capacity), and that money went into the brokerage account. Then she began showing obvious and increasing signs of dementia, so we sibs decided that a formal DPA should be set up. In this case, I'm co-attorney-in-fact with a different sister. I'm also added to the joint account so I can, for example, write estimated quarterly tax payment checks to the IRS for Mom, pay the accountant, pay the premiums on her life insurance, etc. It's a little bit of work, and the "co-attorney" thing under the DPA is a big pain, because now my other sister and I have to both agree, at least verbally, if Mom's broker makes a recommendation.
So, the DPA became effective upon Mom's executing it (signing it and having it notarized at the lawyer's office). It remains in effect even if Mom is officially incompetent or incapacitated. It grants very broad powers to the appointed attorneys-in-fact over the assets of the Principal (Mom), including: providing for the principal, making withdrawals and deposits, transferring, selling and gifting assets, outright or in trust, including "to the attorney-in-fact or any heirs," signing documents, transferring assets to help Mom qualify for medical assistance or nursing home assistance programs, and provisions to receive medical records or information otherwise prohibited by HIPPA.
All that said, basically we just manage Mom's assets, make sure her bills are paid, and do some gifting as permitted by the Federal tax code to get money out of Mom's estate. (Now, when we cleaned out Mom's house, I do think my sisters managed to divide among themselves several thousand dollars worth of jewelry and silver (20 - 30k), but hey, what are you going to do? Mom's still alive and it was before the DPA was signed, so I guess she "gifted" it to them.)
So looking at your situation:
1. Does your mom still own the house or has it already been transferred to your crazy sister? If she still owns it, and depending on the specific language of the power of attorney, I believe you can make provisions to put it in trust, sell it, transfer it to yourself if that seems right, etc. Those things could be done without changing the will; it's just that upon mom's passing, the disposition of assets under the will do not include the house -- it's already out of her estate.
2. The post about mom's mental state when she reportedly made the will leaving the house to your sister is a good one. If she was competent at that time, then her will reflects her desires. However, maybe conditions have changed. Maybe if she were competent now, and knowing various facts, whatever those might be, she'd make a different decision. Either way, I believe that broad powers under a DPA could get the house out of her estate. And there may be reasons to do so that have nothing to do with simply keeping it from your crazy sister; for example, to move or protect assets so your mom is able to qualify medical assistance.
3. Whatever you do, be sure you have the original Power of Attorney document, not just a copy. Also, I believe that kind of document can be recorded with the Clerk's office for the County you live in. It's then a matter of public record, like a deed or mortgage. But even doing those things, do not expect to just waive a document around and, like, drain her bank account or sell the house and put all the proceeds in your personal account. Banks, real estate people, stock brokers and governmental officials will always do some "due diligence" to make sure your mom's interests are being protected.
These are obviously things a competent attorney can advise you on. So don't just fume and do nothing. Legal advise isn't cheap, but a relatively small investment now could greatly benefit your mom and you in deciding what is the right thing to do in the long term.
Good luck. I know what "crazy" relatives can be like -- not that mine are! I've just heard stories, you know....
If you can set up a trust, that is probably the best; talk to a good elder lawyer about it. You could get the house out of the will, and yourself as trustee, you could deal with the property as needed. You don't want to get the house in your name as that brings up issues you don't need.
Old people can be manipulated, especially by a family member. I have a secretive con artist half brother. My mother put her house in a irrevocable trust which protects the house from liens. But he's capable of manipulating her to make out a new will.
I agree with going with a trust. You mentioned you set up a transfer upon death deed but what about medicaid? If she goes on medicaid, they will attempt recovery.
needtowashhair: The mother continues to own the property with a Transfer on Death deed. It only kicks in upon the mom's death. If a lawyer recommends this, once this TOD deed is recorded it supersedes the will. (Unless I misunderstand you, which quite possible.)
i would not wait long to know what has happen to her will if your mom made it at when she was sane then check to see the changes then if seem to be when she was not right of mind then go to it & like i said contact the lawyer that id the original
MountainMoose, my point is about medicaid. Whether it's a will going through probate or a Transfer on Death deed, her mom would still have owned the property while on medicaid. Thus medicaid must recover costs from her estate when she dies. Which would include the property. A trust would shield the property from medicaid recovery. Since technically, she no longer owns it. Thus my question of whether she will be on medicaid. Since if she does go on it, will or Transfer on Death deed doesn't matter, the house may not belong to her or her sister, it may belong to medicaid. It depends on the state. It seems some exclude TODs from medicaid recovery and others do not. OP should check with a medicaid/elder law attorney in her state if medicaid is a factor.
I re-read my original post to be sure I didn’t say anything about my POA being able to amend my will. I didn’t. My post referred to beneficiaries and included the advice for the person who posted the original question to contact an attorney. As far as if I was sure I wanted my niece as my POA...in my particular situation she is the most logical and intelligent choice.
Supermom...I better clarify. My POA can change beneficiaries to my life insurance policies and investments but cannot make any changes to my will. I didn’t answer you correctly originally and I apologize. Like a lot of folks here have said and I stress, contact an attorney. (You don’t only need good advice; it needs to be correct as well !) My eyes read something totally different than my brain comprehended in your question. And I need a vacation very badly!
You need an Elder Law lawyer and someone who is Certified. You cannot sell any real property in California. Medicaid or MediCal would place a lien on your mother's home from expenses of her care (that is if or when you are unable to care for her). There is a 3-year look-back period.
So sad that this always happens. I would suspect that if she changed house to her only if your mom has bank accounts she probably changed the POD to herself. Maybe you can sell the house.
Your mother’s lawyer who completed this new will leaving everything to her sister will only have the benifishery (your mothers sister) interest at heart. Do not use them for advise, if I were you I would sell the property, to pay for your mothers care. Spend all her money on her give her the best of the best. Buy a new car with them money needed for to transport your mother around, build an extension on your house for your mother to live in. Use as much as you can. Greed is disgusting.
First, when you say you are her "guardian," I'm assuming that legally you are the appointed "attorney-in-fact" under a DPA (durable power of attorney.) In my Mom's case (and there are 6 siblings), after Dad passed back in the early 2000's, Mom's regular checking account was changed to a joint account with one sister added. This was mainly for convenience -- Mom was having trouble handling bills, etc. and eventually, sis set up online bill-pay to handle routine expenses. That account was never real big. (Remember that a joint checking account typically has right-of-survivorship provisions, meaning that upon the death of either signor on the account, the money will pass "by operation of law" to the survivor. Having a large joint bank account can seriously mess up an estate plan, because that money is passing automatically to an individual, by operation of law and outside of probate, and not pursuant to any provisions in a will; thus a person's intent for ultimate distribution of assets upon death can unknowingly become ineffective.)
But most of Mom's assets consisted of a brokerage account and her house, which was paid off. And because I knew the broker and had dealt with him frequently before Dad passed, he typically called me to discuss investments. At first I'd always run his suggestions by Mom, but she always said that whatever the broker and I thought was fine. Eventually, I simply quite calling her. And the broker was honest and good, and the account did well. I never got any "compensation" for being the go-between but never expected any. I also dealt with her accountant to make sure her taxes were getting filed and paid. All in all, kind of a pain. But one of my sisters was doing A LOT of day-to-day things, like grocery shopping, taking Mom to dr. appointments, laundry, etc.
Eventually, as Mom began to decline, she agreed to move to AL. We sold her house (she actually signed in her own capacity), and that money went into the brokerage account. Then she began showing obvious and increasing signs of dementia, so we sibs decided that a formal DPA should be set up. In this case, I'm co-attorney-in-fact with a different sister. I'm also added to the joint account so I can, for example, write estimated quarterly tax payment checks to the IRS for Mom, pay the accountant, pay the premiums on her life insurance, etc. It's a little bit of work, and the "co-attorney" thing under the DPA is a big pain, because now my other sister and I have to both agree, at least verbally, if Mom's broker makes a recommendation.
So, the DPA became effective upon Mom's executing it (signing it and having it notarized at the lawyer's office). It remains in effect even if Mom is officially incompetent or incapacitated. It grants very broad powers to the appointed attorneys-in-fact over the assets of the Principal (Mom), including: providing for the principal, making withdrawals and deposits, transferring, selling and gifting assets, outright or in trust, including "to the attorney-in-fact or any heirs," signing documents, transferring assets to help Mom qualify for medical assistance or nursing home assistance programs, and provisions to receive medical records or information otherwise prohibited by HIPPA.
All that said, basically we just manage Mom's assets, make sure her bills are paid, and do some gifting as permitted by the Federal tax code to get money out of Mom's estate. (Now, when we cleaned out Mom's house, I do think my sisters managed to divide among themselves several thousand dollars worth of jewelry and silver (20 - 30k), but hey, what are you going to do? Mom's still alive and it was before the DPA was signed, so I guess she "gifted" it to them.)
So looking at your situation:
1. Does your mom still own the house or has it already been transferred to your crazy sister? If she still owns it, and depending on the specific language of the power of attorney, I believe you can make provisions to put it in trust, sell it, transfer it to yourself if that seems right, etc. Those things could be done without changing the will; it's just that upon mom's passing, the disposition of assets under the will do not include the house -- it's already out of her estate.
2. The post about mom's mental state when she reportedly made the will leaving the house to your sister is a good one. If she was competent at that time, then her will reflects her desires. However, maybe conditions have changed. Maybe if she were competent now, and knowing various facts, whatever those might be, she'd make a different decision. Either way, I believe that broad powers under a DPA could get the house out of her estate. And there may be reasons to do so that have nothing to do with simply keeping it from your crazy sister; for example, to move or protect assets so your mom is able to qualify medical assistance.
3. Whatever you do, be sure you have the original Power of Attorney document, not just a copy. Also, I believe that kind of document can be recorded with the Clerk's office for the County you live in. It's then a matter of public record, like a deed or mortgage. But even doing those things, do not expect to just waive a document around and, like, drain her bank account or sell the house and put all the proceeds in your personal account. Banks, real estate people, stock brokers and governmental officials will always do some "due diligence" to make sure your mom's interests are being protected.
These are obviously things a competent attorney can advise you on. So don't just fume and do nothing. Legal advise isn't cheap, but a relatively small investment now could greatly benefit your mom and you in deciding what is the right thing to do in the long term.
Good luck. I know what "crazy" relatives can be like -- not that mine are! I've just heard stories, you know....