My dad has dementia and never filled out a will or a POA. He has a lot of debt and land, what can I do to help him legally?

Follow
Share

My dad has dementia and is too far along to make decisions. He refused to write a will or assign a POA when he could make decisions. He has a lot of debt and land. The land is in his and my mom's (who died last year) name. Two family members live on the land, but we don't know what to do so that we can continue living on the land after dad dies. What can I do legally to not only help dad, but to help the family not lose the land?

This question has been closed for answers. Ask a New Question.
Find Care & Housing
5

Answers

Show:
Having dementia and being incompetent are two different things. In fact, to be declared legally incompetent one has to be pretty far down the dementia path.

He may not be making good decisions about his health, hygiene, finances, etc., but don't assume your dad can't make simple decisions about his estate. If he is not in the late stages of dementia and is agreeable to doing a POA and will, call his doctor and ask for a simple letter stating that he is competent to decide to assign a POA and to write a will (you may not even need it if your dad is 'sound of mind' in the attorney's judgement). Then, get yourselves to a good elder law attorney. The sooner the better! It's a tricky situation you're in and letting the chips fall where they may will surely not get you an outcome that you desire.

I have a relative who had moderate dementia (could still take care of his own basic needs, but couldn't pay his bills, drive, complete complex tasks, etc). His doctor (the one who diagnosed him with dementia) had no problem writing a letter stating he was competent to sign a POA and make out a will. A good, ethical lawyer will also judge of whether or not your dad understands what he is doing in signing a POA. Hopefully an attorney will weigh in with an opinion here, but I believe the bar is set pretty high (as it should be) for declaring someone completely incompetent.
Helpful Answer (1)
Report

CarolLynn, thank you for your comments. I am able to talk to my family w/ more information and we can make some decisions. Dad is 80 yrs old and physically pretty good health, but w/ my mom's passing he is alone a lot of the time and I have seen some decline in the past 3 months.
Helpful Answer (0)
Report

An afterthought, once you would be guardian, if you could afford to buy some no medical exam required term insurance, mostly these are in the 5000 to 20,000 dollar range, would that pay your father's debt so that creditors wouldn't be looking to the property of the estate?
Helpful Answer (0)
Report

correction ... unwilling to SET UP HIS ESTATE when he was competent, it HAS made some real problems...
Helpful Answer (0)
Report

Wow, this is tough. Your dad is land wealthy but cash poor. The first answer is, without a POA, you can't do anything easily. To transfer property, or to pay his debts with his own money you do not at this time have access to, you will undoubtedly have to see an elder care attorney and set up a trust that you are appointed guardian over by the court (also called conservator depending on your state). But get legal advice before you rush into do that and if it doesn't feel right to you, get more than one opinion.

Where are you living with your father? Your home or in another home he owns in addition to the other property you speak of where other family members live? How do your dads debts compare to the value of his property(ies)? If you can afford it, it's always better to inherit a property (rather then sell it or transfer it), tax wise, if there is substantial equity in the property. That's because and inherited property is "stepped up in basis" to the value at the time of death. With a sale or transfer, the basis is the purchase price plus allowable improvements. That amount would be deducted from the sale price and the difference, let any allowable exclusion, is the amount capital gains is charged on.

You don't say how old your dad is and how much longer he might be expected to survive. You don't know yet if you're going to need to sell the property to pay for his care and there is the Medicaid 5 year look back to be considered.

If he is able to stay with and be cared for by you until the end of his life, that may not be a consideration, but you won't know till you get further down the line.

Because your dad was unwilling to setup is a state when he was competent, it is made some real problems for you and your family. There are so many possibilities and ramifications, I believe you're going to have to start with an elder care lawyer on a consultation basis and as stated before, if you're not comfortable with what you're hearing, get another opinion or two.
Helpful Answer (0)
Report

This question has been closed for answers. Ask a New Question.
Related
Questions