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My mom has not directives and I am going for guardianship. The lawyer stated that I would have to get all her assets in place. My mom has two houses the one she lived in and the one my brother lives in currently. He pays no insurance, taxes, or rent on the house. The house is suppose to get transferred upon her death to him but the lawyer stated she is not dead yet and the courts may make my brother pay rent and pay the taxes as well as the insurance on the house while he is living there. She stated it would be up to the court to decide how they want to handle the house with my brother in it. Is that true? I do not want to deal with that house and I would rather have the house given to him. But she stated that the courts probably will not allow that due to there being a five year look back if I place her in a AL. He would like to sell it and move out of the city he is living in but he cannot sell while my mom owns the house. So can they make him pay rent and all the bills? This guardianship sounds like a nightmare.

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I see the lawyer this week. i can take on the brother I've been dealing with him for eight months. The hard part is over he had to find ways to live after she moved in because she is not handing over money anymore. She has paid for his taxes and insurance on the house but she won't pay for the taxes and insurance on her house and with her decline the house he lives in is something that is gone from memory. He doesn't call her that much anymore because he cannot get money out of her. She doesn't call him as much as she use too. It was up to 10x per day when she first moved in. Now it's about 1 x per every two weeks or more. :). Yes makes me smile.
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Assuming mom owns the house free and clear that brother is living in: The only way she will get Medicaid is to collect rent from brother, or to sell the house to brother at a fair market price. She could agree to hold the mortgage at prevailing interest rates. Now can brother afford to do this?
It will be a very rude awakening for brother to find out that mom can no longer support him or even pay the taxes, utilities etc. on the property. He will have get Medicaid, food stamps, heap and a housing voucher. If he is not a US citizen, he may have a problem on his hands.
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Only - we all have someone within our extended family like your brother… for me there was a worthless Cousin David who got family to invest in business ventures (real bricks & mortar ones who inevitable failed & my mom was one of his many pigeons) and Cousin Mike who was a major amphead who's mom paid for all for him even though he had a civil service job. The fact that you know he's worthless mooch & are doing something about is key. You know someone will just have to make the hard decisions regarding your mom;s care and finances.
If you can't deal with the finances part, you could have the atty doing the guardianship deal with the financial part. Actually you may find - although it will have a cost - that this is easier. I would time limit this, like 2 years as property will be sold by then. Atty will do whatever to get bro out of the house, then place both houses on the market and get them sold with the $ going into whatever is set up. I'd bet $ goes to fully buy a preened funeral & burial and with the rest into a SNT - special needs trust. SNT can be ok for Medicaid if done correctly later on mom needs a NH and her care is beyond what you can do. SNT probably with a checking account that has your signature for all day to day things for mom; and an annual meeting with atty to review. The atty will be a part on all this till beyond mom's death as the SNT will need to defund eventually and atty to deal with the whatevers as per state laws.

You want to think about having a Personal Care Contract done btw you & mom so that mom pays you for care and living with you with the $ coming from the SNT. Just what for the amount, well it will be taxable income for you so that's something to discuss with the atty. If you are drawing SS, you kinda need to keep it below the amount allowed by SSA without penalty. Also if you end up having any costs related to the property (like you pay for yard guy or taxes due end of this month), you should be reimbursed for all those costs. A good NAELA elder law atty knows the nuances to make all happen with no blowback from the state later on if Medicaid is involved.

Atty will be the way to deflect any war / guilt / whining by bro. You'll have your hands full just with day to day with mom.
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So the story of my brother is that he and my mom have been codependent on each other. He came back to live from Mexico when my dad died. He moved in with my mom for a short time she wanted him out so she paid for his apartment to get him out. Now she paid his rent and utilities. So then in 2010 she wanted him closer so she bought the house for him and in return he mowed, did little things at the house, but mostly companionship. Now looking back I also think she was having some symptoms of memory loss but I don't know that exactly. So then she started t go downhill I was along meals to her starting in 2015 and she then asked to move in with me. My brother definitely has mental issues but that is from the alcohol and drug use. He has not worked in about 20 years. She gave him money anytime he needed it. I look at it the past is the past and I know my mom wanted to make sure he will be ok but I also know that he is becoming less constant on her mind as she progresses with the dementia. He does not call her as much now that he is not getting any money from her or his utilities paid. I don't have a problem putting the house into her assets I just dont want to fool around with rent from him and have to actually fool around with him. One person with mental issues "my mom" is all I can handle. That is the story of my brother. He is an able body that can work.
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The lawyer is on the right track on their advice to you. If mom is going to need care, she is going to have to pay for it from whatever assets she has first and foremost that are beyond the limited exempt assets of her homestead and a car.

Bros house is a millstone for ever getting eligible for Medicaid and for what a guardian should do for their fiduciary duty for their ward (your mom). Paying all costs on a second home for an able bodied family member is not good fiduciary duty. If he is special needs, then you need to work some sort of trust for the house and him like sendme suggested. But if its been that mom just pays all and he sees no need to be self-supporting, that has to stop. If you don't do it, the judge will suspend your being guardian and have one appointed by the court. Goodbye all houses and they will determine where mom is placed for care. Guardianship is not for those without strong ability to move past family dysfunctionality and make the hard decisions. If you can't stand up to mom or Bro, don't expect the judge to look too kindly on your guardianship.

It could be that the court won't even accept you as guardian. If you live in another state or a far-away county, judge could just want a local guardian.

So what is the backstory on your Bro?
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Imo, and not an expert: If your brother is being provided for by your mother, in a house, because he is unable to support himself, and she intended for him to have the house, a special needs trust should have been provided and the house would be titled in that trust. Can you do that now, on his behalf? Ask your attorney.

If he is merely an heir to the house and will sell it, do what your attorney says and gather up all her assets into the guardianship. You cannot try to save it for his inheritance, it may be too late, and the funds are required now for her care.

Notice to heirs: There will be no inheritance.
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I assume your mother is mentally incompetent and can no longer look after her own affairs or assign POA as that is the only reason to obtain guardianship?
The five year look back is about applying for medicaid if/when your mother doesn't have enough money to pay for her own care, obviously someone who owns two houses is expected to pay their own way and not ask for government assistance.... it seems to me the two are really separate issues. You really need a lawyer and financial planner who are experts on medicaid and the ins and outs of protecting your mother's assets who can advise you and your brother about this separate problem.
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I am moving your question back up to the front of the line. Hopefully someone with knowledge on this will help out.
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