QUESTION
If I have power of attorney for my mother who is now incapacitated, can I transfer property into my own name using a quit claim deed?
Asked on Mar 01st, 2014 on Estate Planning - California
14 ANSWERS
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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No, as the power of attorney as it would apply to real property/residence, must be a specific power affecting that property only. Incapacitated?? What do you mean by that word? Suggest you see an estate planning attorney to review the power of attorney you now have, to determine if it is specific enough to transfer the property; if mom is on some kind of government assistance, Med-ical, etc, then the government has first claim on the property for repayment of the medical costs, such as board and care.
Answered on Mar 05th, 2014 at 9:50 AM
Thomas Edward Gates
If there are other beneficiaries, they can challenge your actions. Probate is not a valid reason to by pass the will.
Answered on Mar 05th, 2014 at 9:45 AM
Edwin K. Niles
You might have trouble with getting an insurable title. Better talk to a title company. You also have some tax considerations that you may not be aware of.
Answered on Mar 05th, 2014 at 9:32 AM
Taxation Law Attorney serving Glendale, CA
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Irsfeld, Irsfeld & Younger LLP
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No. Not unless the power of attorney explicitly authorizes it.
Answered on Mar 05th, 2014 at 9:25 AM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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Probably not. The terms of the POA need to be reviewed, as well as all the facts of the situation. It may be possible to seek approval from the probate court, as well. But generally, what you are contemplating would be considered self-dealing, and there could be all kinds of problems and repercussions.
Answered on Mar 05th, 2014 at 9:22 AM
Be careful, if you transfer assets and your mother needs Medicaid in the future, she will be penalized for the transfer.
Answered on Mar 05th, 2014 at 9:22 AM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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You really should not do this. Self-dealing is a breach of your fiduciary duties. Also, there are tax consequences to transferring property during life, as opposed to inheriting it. Finally, if your mother were to need assistance from the state's Medicaid program, your gifts to yourself would disqualify her for a period of time.
Answered on Mar 05th, 2014 at 9:21 AM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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If you are the only heir, I suppose. However, be careful because if mom is on Medicaid, it may come after the property even if you have the power. Also, if you transfer the property now, I don't think you will get the stepped up basis for income tax purposes that you would get when transferred upon death. if there are other heirs, you are looking at a big breach of fiduciary duty lawsuit. Finally, the cost of probate in Idaho is minimal and is not a reason to try and avoid it.
Answered on Mar 05th, 2014 at 9:17 AM
Probably not. Your first duty is to protect all of your mother's assets. To transfer her property to your name will look like stealing, even if you do it with the best of intentions.
Answered on Mar 05th, 2014 at 9:17 AM
You should consult with an attorney specializing in estate planning and Powers of Attorney before you transfer property to yourself.
Answered on Mar 05th, 2014 at 9:16 AM
Commercial Attorney serving Chicago, IL
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Ashcraft & Ashcraft, Ltd.
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A durable power of attorney grants authority to the agent so long as the principal is alive. It does not matter that the principal is incapacitated. If the power of attorney is a durable power and grants the authority to sell real property then you can execute a deed on behalf of the principal and record the deed. The Power of Attorney should also be recorded to prove the necessary authority. This should only be done if you are the intended beneficiary of the property under your mother's Will. If your mother will require Medicaid assistance for payment of care expenses the transfer to you without consideration will jeopardize Medicaid benefits. Medicaid can look back five (5) years from the application for benefits to determine if any assets were removed from the estate of the applicant without fair value consideration. Medicaid benefits can be withheld relative to the value of the removed property.
Answered on Mar 05th, 2014 at 9:15 AM
2 Awards
Absolutely not. You cannot use a power of attorney for your own benefit. If she is incapacitated, you will just have to go through probate if she did not leave a trust to avoid it.
Answered on Mar 05th, 2014 at 9:15 AM
3 Awards
That causes tremendous issues and violates your duty as a fiduciary. It could even cause her to lose Medicaid. Speak with an attorney who can review the entire situation and advise you. Probate really is not that bad.
Answered on Mar 05th, 2014 at 9:08 AM