I imagine I need to ask legal counsel, and it likely varies by state, but is there documentation needed to memorialize the situation of an independent, functioning, adult child living with an elderly parent…specifically to outline the adult child’s living situation once the parent is no longer residing in the home? One of our siblings is living with our elderly mother (in her late 80s but physical and mentally sharp)…due to sibling’s need…not mother’s need. Sibling is gainfully employed but not asked to make any financial contributions, has no sweat equity in the house, is not on the deed, has no formal or informal lease or living arrangement and is not mother’s caretaker in any way. Started over five years ago as a temporary situation and continues without mother and child ever discussing the end game because conversations are uncomfortable. Our mother has made it clear to others that she would like sibling to move out but will not make waves, and has been adamant – to other children only -- that sibling cannot live in the house after she is no longer there; she wants it sold with proceeds going to another living option for her and/or the estate. No one knows if sibling would ever want to remain in the house, but given a lack of motivation to find a place after so many years, there are serious concerns from others that sibling would not cooperate when needed…which could be when mother moves to another living situation or passes. Despite our mother’s strong desires, she will not communicate them given the typical tension that results. Other children have volunteered to speak to sibling on this issue and mom declines the offers. All siblings are trying to work together (including the one in residence) to allow our mother to remain in her house as long as possible, while assorted siblings are also dealing with various legal and financial matters, home improvement, etc. Absent, or in addition to someone speaking to sibling on this matter, should she/we memorialize in a notarized or legal document, and/or the will, so her directions are clear? Not that sibling would abide by them, and we may need to take other measures when the time comes, but at least we would have written evidence of our mother’s wishes to validate any course of action. I will become the guardian for a dependent sibling when my mother can no longer handle the role, hence I am looking to avoid additional issues in the future…if possible. Thanks
You need the advice of an elder law attorney on several levels here.
Mom's POA can handle sale on home per her wishes at any time if Mom is competent to make this decision, as well.
But don't take our world, and do check in with an hour of Lawyer's time on this one, would be my advice. Too many issues involved.
Your Mom needs to get it in writing that this sibling can no longer live in the house once Mom no longer resides there. There should be a timeline, 30 days, 60 days. Check with the lawyer that if after set timeline does Mom have to evict, or can the authorties come and escort the person off the property. I would also stipulate that person is responsible for the cost of utilities and taxes as long as they remain there. Charging rent may cause a problem with Medicaid.
She should definitely have it in her will that upon her death the sibling will no longer be able to reside in the house. Unless, said sibling wants to buy the house paying his/her siblings for each of their share at Market Value. This can get tricky too. To be able to buy siblings out said sibling needs to get a Mortgage in a set time using that money to pay siblings.
I know a family in a similar situation. The Youngest brother came home to live because of a divorce. There were 5 children when Dad died the house would be sold and the proceeds split be the kids. Dad died, son claimed he had been his caregiver so kids made an agreement. He had to get a mortgage in 5 years and pay the siblings their share. 5 yrs went by, he did nothing. So sister sued him and won. It was horrible. My friend, another sister, sold her house and moved in with brother. I think she paid sister off. Not sure what agreement her and brother came to but when she died, he claimed the house was his. She had 2 kids that tried to fight it but gave up. I know one brother gave this brother his share, not sure about other sister. It was a big mess.
So what am I saying after all that, get everything in writing!
FYI in some states the Medicaid application "look back" period can be as long as 5 years...therefore your mom and her kids should be extremely careful about making any financial transaction of funds, assets or property that would appear as "gift" to the Medicaid. This may delay or disqualify her at a time when she'd need the financial help the most.
If your mom has no PoA assigned, her wisest step would be to invest in a 1 hr consultation with an elder law/estate planning attorney. Maybe at that meeting she'd see the need to assign a PoA (or more than 1).