Do I need to get guardianship of my 48-year-old special needs brother who I am taking care of?

Yes, the sale of the house will effect his SSD. You need to talk to a lawyer about setting up a special needs trust.

Joanne is correct - he will loose all social security disability assistance once he inherits. So before you probate the will see an attorney who specializes in trusts- specifically a "Irrevocable Special Needs Trust". You may run into a problem in that since there was no trust to begin with - your mother left her property to him and not to his trust- if he had one. This could get sticky but the attorney should be able to give you advice and hopefully a legitimate way around this. There may be a legal loophole regarding the house as long as he lives in it but if you sell and the proceeds go to him - you're going to likely have a big problem- but again, a trust attorney will know and advise. 

And no, you do not need to be his guardian but if he is over 18 and unable to make decisions for himself- someone must be. He can be his own guardian if he can make basic choices in his own best interest- with you to guide him. However - I don't understand how you got POA for him. That is something that the person themselves must grant - and if he's not capable of understanding than he can't legally grant anyone POA. Which brings you back to him requiring a guardian. The state can appoint a legal guardian if you don't want to do it. Personally, as this grants the authority to choose where he lives and other major life decisions- I wouldn't want anyone else making those choices besides family.

So bottom line - to avoid loosing SSI or SSDI he needs a trust. You can establish the trust and control it by being the trustee - you don't need guardianship or POA to do that. If he can't make choices for himself that are in his best interest he must have a guardian. I'm surprised he doesn't already.

Did mom leave "everything " to brother in a Special Needs trust? If so, can you contact the lawyer who set that up?

Yes, you need guardianship if he is not able to make to make his own dicisions. If she didn't set up a special needs trust you can do it and be trustee. Once this is done, you can apply for SSD. He will then will get Medicare and Medicaid. I would assume that he has been on SSD and Mom set up the trust. If he was left money SSD should have been made aware.

I agree. Get legal advice from an attorney who really understands the laws that apply to Medicaid, Disability, Trusts, etc. Ask if brother renounces his share under the Will, it will work out okay. Also, inquire about Trust. In some states, that doesn't cut it.

Thanks! I am going to see a lawyer today. I will let you all know what was told to me and the action done. I really appreciate your interest in my problem(s) and the help.

Look up "the responsibilities of a guardian" for your State. Usually it only gives another rulership/making decisions (and carrying them out) over his health issues yet it some states it may include property and/or finanaces. If it is the later and you just nees help with his day to day living essentials i.e. bathing, eating, making it to doctor appts, etc. Then you can (through the right medical insurance) hire home health aides or personal care workers to come in and assist with these type issues.

If u need to get gaurdianship, you can use his money for the lawyer.

First, thanks to every answer to my question. Mom left a Will that left her home and property to him. He cannot make decisions at all. Physically, he does well; however cognitively he doesn't understand any of this or other stuff. I already have DPOA medical and financial. He has been on SSD since he was 20. I haven't probated the will yet. When I do, won't he lose his insurance and SSD? The house is paid for. And, I am staying with him to take care of him. Will my income count on his SSD? I am in such confusion. The closest Atty is 2hrs away from us. I also am permanently disabled. I lived with Mom(passed in July 2016) and him since 2009 when Daddy died. I need experienced advice. Thanks so much

Couldit- my last piece of advice is for when the Irrevocable Trust gets set up. Be sure of what choices and decisions got into it as it will be permanent- the whole point of an Irrevocable Trust.

I made my sons trust about twenty years ago. I was reading it s few days ago and came across something I wish I hadn't done. So now I'm seeing my attorney to ask about changes. I almost positive it won't be possible or at a minimum it's going to take asking the court and lots of attorney involvement and their fees. Oh well, if I can't change it - I'll live.

It seems that every time I turn around these days I find myself thinking "If I only knew then, what I know now"! Good luck to you.