My sister was suing my mother over property, my mother called my husband and told him she is sending him money that she wants me to have for our family. She continued to say, she has never given us anything and that she feels guilty for it. She had been for 20yrs paying for everything for my sister and her 2 children. She stated she was scared my sister was trying to get all her money now and wanted to make sure we got some of it. My husband question my mother on many occasions saying "Are you sure you want us to have this? What will you live on?" She assured my husband she wanted to & that she receives 2 checks a month and has plenty to live on.
We are in very bad financial debt so we were so happy to get this unexcepted help. We used the money to pay off credit cards & loans. We are still in debt but it helped. Now my sister is saying we must return the money & my mom is lying saying she asked us to "hold" it for her. She NEVER said that. She is bullied by my sister and once my sister found out she couldn't get money from mom when she sued her. She then turned around & embraced my mother acting as if she cares & now says my mom has dementia & I must return the money. We don't have it! We paid bills! We have proof. Plus my Mom said we could use it. Legally, do you have to return a gift? There is nothing stating we were supposed to "hold" it.
Please help me

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Hi Jill...

You do not need a lawyer until someone takes some action against you. There is absolutely no reason to panic! My experience has been that most of these issues between family members are not pressed and although bad feelings may remain, legal threats/remedies die in process. To successfully "prosecute" you via a civil action (trust me, this will never be considered a criminal matter) your sister would have to prove that mom was incompetent at the time and/or that you somehow coerced or "stole" the money from her. From what you have stated, she will not succeed.

I will add this for what it is worth: I believe in repairing familial relationships. It is a huge part of happiness, fulfillment and success in your life and the lives of your progeny.

I would also like to correct some of the information provided above regarding Federal Gift Taxes.

First, a gift is not taxable to you as "income" under any circumstances. Second, the Federal Estate and Gift Tax is actually called the "Unified Federal Estate and Gift Tax" and each individual has, therefore (under current law), a lifetime exemption of $5 million for all gifts and estate assets. As a result of this lifetime exemption there will never be any tax on the gift (unless mom has over $5 million). Also, it is your mom's responsibility to file the Form 709, not yours. And, if there were tax due, it would be her obligation to pay it, not yours.

Lastly, in my neck of the woods elder law attorneys are VERY expensive and usually work on a flat fee basis. There is no reason to even approach an elder law attorney unless you have a complicated asset situation when applying for Medicaid benefits. Even then, I would seek alternatives before paying crazy fees for work that can be done by your family or a non-lawyer planners who specialize in these matters. For low income/asset applicants there are plenty of social service agencies that will assist at no charge.

Good luck!
Helpful Answer (0)

Start with your local state bar association for a referral for an elder law attorney. Many lawyers will have a set fee for the initial consultation. In the first visit you should be able to figure out what your rights are here.

Was your Mom diagnosed with Dementia by a qualified physician? To your knowledge, has your sister started legal proceedings? My feeling is that she is bluffing to see if you will just cave in and give it back. The reason I say that is because it takes money to hire an attorney and it sounds like she has been living off your Mom for years. Regardless, don't overeact to the threats but be prepared.

good luck
Helpful Answer (3)

Something isn't right on this.
You say she is on Medicaid and yet had $ 24,000 that she was able to give you?

Medicaid is a state and federally funded health care program for the very poor and profoundly disabled. If she has so much assets that she can just send you 24K there is something wrong and she shouldn't qualify for Medicaid. Could it be that your sister (whom I assume is DPOA/MPOA or has been the family dealing with mom and her aging & finances) is going through ''spend-down" to get her at the asset level so that in the future IF she needs to, mom can qualify for Medicaid for a NH. If that is the case, the 24K that mom gave you will make mom face a very stiff penalty period for not qualifying for Medicaid - the penalty period and how the $% is figured depends on each states NH average costs. If your state avg is 5K then you could face having to private pay the NH for 5 to 7 mos with penalty & interest. That's alot of $ and if you live in a filial responsibility state (30 of the 50 states), your sis or the NH can go after you to do that as you got the 24K. Now filial responsibility laws are kinda oddly written but NH & family in some states (PA) have successfully done it.

If this is the case, I can understand why sis is freakin' out about 24K.

Then there is the whole tax implications. You should report this on your taxes as income & if it was a check for over 10K the banks HAVE to do reporting on it due to Homeland Security concerns. IRS form 709 has to be done for any $ gifting over 11K. So if mom wrote a check to you for 24K you will have to do tax on 13K (24K -11K exempt). It will surface, IRS might not get you on this years taxes but it will come up eventually w/penalty. If you sis wanted to be antagonistic on this she can file form 709 to you on mom's behalf. IRS doesn't care whether you used 24 K to pay bills or go to the south of France, it's taxable income.

I would try to work out whatever with sis, so that you are on the same page for your mom's care. Whatever your differences need to be put aside (it sounds like alot of long seated issues). The best and optimum for mom needs to be what this is about. If mom's "2 checks a month" pay 5-8K a month, then she & you all will probably never have to worry about her running out of $, but you said she was on Medicaid so that probably isn't the case. For most of us, if they live long enough they will run out of $ to pay for care & aging related expenses whether at home or in a NH.

For Medicaid for the elderly to go in a NH, the individual must show that
1) are 65+,
2) medical condition requires a skilled level of nursing health care,
3) monthly income under their states ceiling, which is usually $ 2,000 - 2,200
4) countable assets are less than $2000 and
5) not gifted away anything of value during the look-back period. Look back period is 5 years for most states.If gifting occurred, there will be a penalty period in which although they qualify for Medicaid, they will have to private pay for the period.
Helpful Answer (2)

Legally you are not obligated to return a monetary "gift" of this nature.
However, should your Mother need skilled care in a long term care facility and wish to apply for title 19 -Medicaid in the future, that money will be counted as an asset for 5 years! In other words, should your Mom need nursing home care or in-home care and wish for State funding to pay, they will look back over a 5 year period and you and your Husband will be liable to pay back any "gifted" money that you received. If you have spent the money, the State WILL go after your own assets and or income to recover those funds
Helpful Answer (2)

Guess if your mother has "dementia" as your sister professes, then she, too, will be paying back the $ and assets your mother gifted her?
Helpful Answer (2)

First, stop taking calls from the sis. She may be bluffing and just trying to harrass you. You won't know until you see documentation or legal action. I cannot see how she can sue you. Your Mother would have to file suit.

If you think your sister is taking advantage of your Mom and you have proof, she may need to be placed under an independent guardianship until this is sorted out. Also, did your Mom put something in writing to say that she was freely giving you these assets for your use and no re payment was required?

If this is causing you stress, see an elder attorney now to ask about your rights and to find out how you can protect your Mom. Another consideration is that any gift your Mom gives anyone is subject to the "5-year look back" period in the event that she needs to qualify for Medicaid and other government programs. She needs direction too.

I wish this was the first time we heard this kind of story in our forum :o(
Helpful Answer (1)

Absolutely not you do not need to return a GIFT!!!!! However, if you mother is of sound mind you may want to have her document that she did give it to you to help with your financial situation instead of saying it is a GIFT. If you mom has to go into a nursing facility down the road you will have to give all that money back. If you have documentation that your mom wanted to help you financially then it is not a gift but money to help you survive. Don't say it was a gift if you don't have to as you'll hurt yourself in the end. My mom gave us money to live when my husband got ill to help keep our home and my sister insists that all that money is a gift. It is not, it was to survive and never noted anywhere as a gift. It was used for hardship. My mother however gave my neices $5000 each to buy new homes and that is considered a gift and will need to be repaid if mom ever goes to NH.
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Allow me to suggest what has proven to be a faster and far less expensive way through this and other elder/estate related conflicts.

Mediation is a proven tool for resolution of a variety of conflicts. It is a voluntary and confidential process in which a neutrsl- the mediator- helps the disputants reach their own, enforceable agreement without it being ordered by a court or jury.

Litigation on the other hand, is often expensive and time-consuming. Lawsuits can drag on for years, the legal meter running, and the estate or assets involved, steadily decrease. Nobody is happy with such results. The costs of intra-family disputes can be wasteful and harmful to relationships.

Mediation encourages the parties to think outside traditional lawsuit limitations to craft solutions. Often, after venting and sometimes tearful sessions, the power of apology and conciliation helps move the parties to agreement. My experiences tell me that when disputants mediate, they usually reach accord, usually faster and cheaper than litigation where the only winners are the lawyers.

Mediation allows parties to be represented by counsel. Resolution is reached by the parties themselves. No judge or jury of strangers can impose its conclusions. The process belongs to the parties. The mediator is there to help, to listen and occasionally recap what has been agreed-upon.

Mediation is not coercive, cannot force anyone to do anything or pay any amount.
Mediation can only help, assist and encourage resolution and an end to the controversy.

Michael Froman
Helpful Answer (1)

Thank you for your response. My mother is already on Medicaid and no she did not put something in writing to say that she was freely giving us these assets for our use and no re payment was required? She called and verbally said "I am sending you this money because I have never done anything for you or your children. I have always helped your sister and never helped you. I want you to have this money for your debt & family" My husband questioned her intent many many times. He even asked how will she live. And she stated she gets 2 checks a month and will be fine. ...She has paid for everything for my sister who has been married several times and has had children by different men and who can never hold a job. I was the solid one, in a good solid 24yr marriage with 4children and never once received help or asked for help. My mother now feels badly and so she gave us the money.
My sister is saying that my mother has dementia and I must return it...This is a nightmare and we are very upset. We do not have the money because we payed bills. Which we have proof.
How do I find a lawyer?
Helpful Answer (0)

The 24k was her savings that she was worried that my sister would take.
If we pay taxes on this money and it winds up down the road, for whatever reason, we have to repay this we just loose those taxes we paid on that money.
Also, I may be incorrect about Medicare. I know she draws social security and disability. It's very confusing.
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