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Can I take my husband's name off of our deed if I have a POA with power to make all decisions concerning the home. my husband has FTD, dementia, and has been determined not competent to make decisions.



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Does your husband’s Power of Attorney document have a clause that allows “Self Dealing” ? This is the clause that a title examiner would look for in the future, when you sell or transfer the real estate to someone else.

The Power of Self Dealing allows you, the attorney-in-fact, to make transactions that benefit you.

Without this Power, third parties can’t be sure that a transaction (in this case the conveyance of full ownership of the house) is not improper. They could view the conveyance of the house as a defect in title.

A person who signs a Power of Attorney document may decide they don’t want their agent (attorney-in-fact) to be able to make deals that benefit the agent. So, they intentionally don’t include a Power of Self Dealing in the document.

Your question illustrates, for everyone who is reading this, another reason to hire an attorney to draft your Power of Attorney document based on your specific needs and intentions. The attorney is trained to think of all the ways the Power of Attorney document can help you and your family.

Your case is common. The spouse of a memory loss patient who needs nursing home care must transfer the family home to their individual ownership, in order to qualify the memory loss patient for Medicaid.

In your case, you can consult an elder law attorney who knows the real estate conveyancing rules in your state. The attorney will read your husband’s power of attorney document, and determine whether it has sufficient power to do what you want it to. If you hire the attorney to handle the real estate conveyance that makes you the sole owner, the attorney will be responsible to make sure you will be able to sell or transfer the house in the future.

The attorney you hire can also provide valuable guidance on how to obtain Medicaid home care benefits, and plan for the potential need for care in a facility.
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Nope, you can never use a POA to transfer assets to yourself. Illegal in all 50 states
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Elaina, what is it that you want to accomplish by retitling to yourself only?
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Not only might you need to explain how it is in his best interests, but it might have tax ramifications. When he passes and you inherit his half, when you sell the house you only have to pay Capital Gains from the time you inherited the half. If he "Quick Claims" you his half now, you would have to pay taxes on the difference between now and when you sell. I don't know if this makes sense, talk to your tax person. My mother insisted on Quick Claiming her part of a house we owned to me before she died, I tried to talk her out of it, but just decided it was easier to eat the difference. It was several thousand dollars. I knew it would happen so I was prepared.
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Thank you, John Roberts. I sincerely appreciate your advice. You are exactly right about getting the right attorney. I hope others take note. When we created our trust, my husband was diagnosed but still competent, (odd but competent). I told the attorney the situation and said we needed to be prepared for what may come. He was a reputable attorney and a good man but not an eldercare specialist. I thought we were covered. A few years later when I had a discussion with an eldercare attorney, she said we had some vulnerability.
Thank you so much for your advice.
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What an eye opener John - we don't have that option in the UK at least I don't think we do but it is something to know about and a question worth asking.

The trouble is when you don't know something you don't know to ask about it either. Takes a specialist like you to help us all and we soooooooooooooo need that from time to time
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Pam's right you couldn't explain how that would be in his best interests
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Thank you for taking the time to respond. I feel I am in a catch-22. I can't afford full-time care for my husband on our own, but I have to work full time or I can't pay the mortgage. It appears we make to much to qualify for aid but not enough to pay it on our own.
An elder care attorney told me 2 years ago, that filing a quit claim removing his name "could" be a way to protect the house. (It was a casual conversation, not paid legal advice).
Medicare & supp. insurance do not cover home care.
If he could qualify for medicaid, our state recoups everything they paid from the sale of the house. I can live in the house until I die, and when its sold they would take that money. I have no idea how many years, could be 3 more, could be 8-10 years. I couldn't afford to move if I sold it and I can't afford the upkeep of a 4 bedroom, yardwork & repairs.
Two years ago my husband could have signed it himself. The notary does not have to witness the signature, only confirm with him his identity and that he signed it, I have legal power to make and sign all financial transactions on the house. I also have POA. My husband is legally incompetent, now.
I'm getting in a financial hole because we have a negative cash flow paying for care every month. I'm about at the point of interviewing homeless people to find someone to watch him for room/board and a little cash. So I thought I might try the medicaid route, hence my question here.
Thanks for your comments. At least I got to vent. Both of us have expressed a desire to die at home in this situation. And yes, I have left the door open to the possibility that at some point in time he may need to be in assisted living. It just isn't now. I will do whatever I have to do to care for this formerly intelligent, loving person who is being ravaged by BvFTD (look it up).
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Clarification: "I have no idea how many years, could be 3 more, could be 8-10 years." I mean I don't know how many years my husband will live so what I end up owing the state could be the entire value of the house. Full time care $30 - $40k per year.
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