declaring someone incompetent

Latest post 08-16-2009 12:51 AM by Judge Not. 8 replies.
  • 03-09-2008 7:58 PM

    • amos3
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    • Joined on 03-03-2008
    • Posts 3

    declaring someone incompetent

    my brothers and sisters are trying to declare my mother incompetent because she has signed over her home to me. the home was in a trust at the time and my mother chose to remove that and place it in both our names so that i could get a loan to repair her home and make it a better environment for her to live in, then my brothers and sisters decided to prevent the loan from going through (by going to the banker and threatening the bank with a lawsuit and tying it up in court) so my mother chose to place the home in my name only so they couldn't get it and we could still have a chance at repairing the house. her wishes are for me to care of her in her home instead of going to a nursing home, they have accused me of elderly abuse and are now trying to prevent me from bringing her home from the hospital and they wish to place her in a nursing home and take the property back so they may sell it and then divide the monies. she at first signed a power of attorney (financial) with her granddaughter under distress (in the hospital with the flu) and then asked the granddaughter to return this paper the next morning then the granddaughter told me she shredded it. My mother then wanted me to be the power of attorney so we signed a document together to override the granddaughters poa. needless to say the grandaughter still has her poa and is using it to obtain financial information on my mother and is now trying to get her declared incompetent. what rights does my mother have and what can i do for her to help her stay in her own home instead of being declared incompetent and going to a nursing facility?
  • 03-09-2008 8:06 PM In reply to

    re: declaring someone incompetent

    “my brothers and sisters are trying to declare my mother incompetent”

    They can’t do that, only a judge in a court of law can declare a person incompetent. A judge would listen to relevant information including reports by a physician, and perhaps reports from Social Services Adult protective services.

    “they have accused me of elderly abuse”

    To whom?

    “what rights does my mother have and what can i do for her to help her stay in her own home instead of being declared incompetent and going to a nursing facility?”

    Your mother, if mentally competent enough, can revoke any POA she wishes to revoke, but needs to do it in writing and needs to inform the granddaughter that she has done so.

    It’s not clean in your post “how” your other relatives are “trying to get her declared incompetent”? Is your mother of enough sound mind to be signing POA’s herself? She can have one signed and notarized with a traveling notary.

  • 03-09-2008 8:32 PM In reply to

    • amos3
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    re: declaring someone incompetent

    they called dept of health and senior services and reported this and than a rep from that agency visited my mother at the hospital. my mother told them exactly what she had done and that was her intentions.

    I do believe my mother is very competent, she knows where everything is at in her home she knows what she wants and she can tell you without any doubt the answer to any question you pose to her. she knew what she was signing she asked to do it and it was notarized and the notary asked her if in fact she knew what it was she was signing and she said yes.

    My older brother that was living in the home with us recently died of cancer, i was taking care of both of them and the day he passed away i took her to the hospital where they admitted her with a bowl obstruction.

    my brothers and sisters have talked to me several times about getting her declared incompetent and placed in an nursing home because they cant take care of her and i can and they do not want me to do that because they do not want me to get the home which we live in.
  • 03-09-2008 8:41 PM In reply to

    • amos3
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    • Posts 3

    re: clarify my story

    i did say my mom was signing over the home to me but i need to clarify that this home is not yet paid for and there is still a mortgage on this house which i will use the loan to pay that off as well as repair the home.
  • 03-09-2008 11:06 PM In reply to

    re: declaring someone incompetent

    “they called dept of health and senior services and reported this and than a rep from that agency visited my mother at the hospital. my mother told them exactly what she had done and that was her intentions.”

    This all sounds good, I would hope senior services had a good report of the visit, but you don’t say. Do you know the outcome of their evaluation?

    By what method did your mother place the home in your name? Did she have an attorney prepare the deed to change it from a trust (was it revocable?) to place in your names?

    “my brothers and sisters have talked to me several times about getting her declared incompetent and placed in an nursing home because they cant take care of her and i can and they do not want me to do that because they do not want me to get the home which we live in.”

    Sounds like this is not their decision. Perhaps the less you talk with them the better. Would help too if your mother told them clearly that she has made HER own decision to put the house in your name, etc.

    If your mother is at risk of going into a nursing home is some time in the near future, those costs can eat up savings and home equity very quickly. If she becomes eligible for Medicaid, there is a 5 year look back period where they can place a lien on the home, even though it was deeded to you.

    It would be advisable for your mom, and perhaps you too, to have a short consultation with a lawyer knowledgeable in estate planning who can explain your mother’s options.
  • 03-10-2008 4:21 PM In reply to

    re: clarify my story

    "what rights does my mother have and what can i do for her to help her stay in her own home instead of being declared incompetent and going to a nursing facility?"

    If your brothers-sisters make a formal issue, she needs to get her own attorney.

    "... i did say my mom was signing over the home to me but i need to clarify that this home is not yet paid for and there is still a mortgage on this house which i will use the loan to pay that off as well as repair the home."

    In more simple terms, I gather you are consolidating the existing mortgage and getting more money for repairs. Not clear on why your mom would have to sign over the house to you to achieve this (you could have just co-signed a loan if her income was not sufficient to qualify).
  • 03-10-2008 7:20 PM In reply to

    More [=+=] Taking mom's house, cashing it out with a loan

    The situation you describe would appear to most people as suspicious. Elderly mom just up and deeding her house to you smells of undue influence, and mental competency is irrelevant in that regard. But it needs repairs - well why not take the money mom would use for the loan payments and make some repairs.

    If I were your brother or sister, I too would be very concerned that mom's assets are now in your name. For one thing, you just lost a step up in tax basis and could have to pay many tens of thousands of dollars to the IRS as a result when mom dies as a result of the deed before death. The planning is not professional. Also, now your creditors can take mom’s house.

    If these are indeed the moves that mom wants to make, then she should be making them with out your help. Let me emphasize - if you are involved in obtaining the deed then the presumption in court is that you influenced her. Where did you get the deed?

    She should hire a lawyer (without your help) to review the plan, to advise her, evaluate your influence on mom’s decisions, as well as her competency.

    Even an “all clear” from Elder Social Services after a ½ hour investigation carries very little weight in court. If lawyer signs off on the deals, after an investigation, then fine, you have evidence- investigation meaning talking to mom’s doctors, brother and sister, you, mom’s banker, reading prior estate plans, etc.

    If lawyer does not sign off, and you were involved in obtaining this result, I think you are looking at being on the back side of litigation.

    HatTrick

    HatTrick

  • 03-11-2008 1:48 PM In reply to

    • Drew
      Consumer
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    • Joined on 03-30-2000
    • PA
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    Warning [=*#] re: Taking mom's house, cashing it out with a loan

    I would agree that there are lots of loose ends--and that Mom is better served to review her options with paid counsel! And you would be wise NOT to be sitting in room to seem as to influence her thinking .

    1. If they claim she is incompetent then she seems to also be incompetent to make a POA ? Catch 22.

    2. Mom assuming she has not lost her marbles is free to revoke the prior POA to GD and confirm same with GD and sends confirmation of same to all of Western World!

    3. If it is Moms home she is free to do as she pleases with it--wise or not--and the standard of competency to will it to you is about 2 steps above a mushroom. You may be unwise to look like you are in a position of undue influence etc.

    4. If Mom needs Medicaid (not medicare) the rules are Draconian as to recent gifts and conveyances yet they do provide protect for the home IF you have been there for several years to provide her with care--see rules for details. It could in Medicaid context be uncool to gift it to you!

    5. I can see point where sibs think you are there to line your pockets. But flip side is if Mom has promised you compensation or consideration for a whole lot of work to care for her such a promise is essentially unenforceable unless its built into the equation NOW.



  • 08-16-2009 12:51 AM In reply to

    • Judge Not
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    re: Taking mom's house, cashing it out with a loan

    I read thru all of this and it seems it has snowballed. First lets look at the facts. You may want to write them down in a notebook and keep a dated diary as things transpire. Make sure none of the pages get torn out, and not a spiral.

    1. Revoke the poa the grandaughter has. Drive mom to an attorney and walk her in let her to do it on her own. you can set up the appointment, but let her do it.

    2. Make a second appointment soon after or on the same day giving you poa.

    3. I must agree putting the house in your name is an excellent idea, avoid the cost of probate. You do have another choice, you can put it into a trust with your name only as benificiary. No one else cazn touch it, however it has to be in your name for  X amount of years before she passes or it is null and void and can be contested. If she has at least 3 to 5 years left, I would say you are safe. Nasty business this.

    4. Definately have Mom set up a nice public dinner and invite not only your greddy siblings, but Moms sister, brothers, cousins, friends who know her wishes and that yoou take care of her. so you and your Mom have support at this dinner and the siblings are not likely to make so much of a scene. Bring revoking poa paperwork, your new paperwork as you the poa, and let Mom tell them in her own words her plans to live out her golden years at home. She worked hard for her home and it is her decision to will as she wants. She could go as far as to inform them she is ashamed of thier bad behavior and raised them better than to act like vulchers. She needs to be clear without getting upset. Deliver all with a smile and sweetly. She needs to be firm and final with them. Make them aware they will respect her wishes or not come around till they do. To shame them make them aware they are young able bodied and can earn thier own house instead of trying to take hers. She obviously wants you there and wants your care and support.

    5. As andded benifit, use the Division of agings visit to your benifit. They have cases of ensure and meals on wheels, and can get you free equipment for her. Make your lives easier, all you do is ask. Make them welcome and on your side.

    6. Last thing. This is simple. In everything you do and say make sure you are the guy wearing the WHITE HAT. Be the good guy, the right guy. Ask your self "Am I going to appear to be the guy in the white hat if I do this?" An attorney, who was honest, said he always tried to wear the white hat. To be the good guy. Do not let yourself fall into thier bickering. Make them respect your mother. A gentle reminder of who they are attempting to rob of her golden years would help. Picture albums, memory lane of Mom at her best and all she gave them. Guilt can be a help with greedy children. Yes, invite them to see her, but if they are disrespectful, they need to go home. but make sure they know they can return, but must behave around her. It is so sad to see your children resort to such things.

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