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Last summer, my 80 yar old elderly father in law signed a lady bird deed, giving the family home to my wife when he passes away. She is the only child. In Jan 2021, after a series of medical issues, he had to go into an Alzheimer's unit with dementia. His doctors say he can't live alone and that his living situation was dangerous to his health. Our question is simple.........Is there a way to transfer the home to her NOW? She has his durable and medical powers of atty.
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This may be inadvisable for at least two reasons. First, if your FIL gifts the home now, he will incur a penalty period if he needs nursing home Medicaid or a Medicaid home health care waiver. In 2021 that period will be determined by dividing the fair market value of the home by $212,50. It is likely to last months. Second, even if the Durable Power of Attorney has broad gifting powers, by gifting to herself you wife is violating her fiduciary duty under the Durable Power of Attorney. A better approach may be to lease his home to help pay for the cost of the Assisted Living Facility's memory care unit. If you would like to discuss this with an elder lawyer near year, see the website of the National Academy of Elder Law Attorneys (www.naela.org).
Answered on Mar 26th, 2021 at 5:17 AM
This is general information. It cannot substitute for a personal consultation with an attorney. It is not intended to be legal advice or imply an attorney-client relationship.