We have a family dispute regarding a sister who has lived with and cared for our elderly and failing parents for nearly 10 years. She moved in with them in Oklahoma City following a divorce and loss of her job in another city.
1. Shortly after she moved in with them, our father — who was suffering from Alzheimer’s Disease/dementia — was transferred to a nursing home close to our parents’ home. He lived for another four years during which time he went through the “spend down” and had just qualified for Medicaid when he passed away.
2. My sister has continued to live with our mother whose condition has deteriorated to the point we no longer feel she can live at home and our sister is no longer able to care for her alone. Our mother recently broke her hip and has been placed in a nursing home.
3. The sister who has been living with and caring for her has learned that my mother can “gift” her the house under the Medicaid exemption rule that allows a child that has lived with a parent for at least two years and has provided care that kept her out of a nursing home is exempt from the “five-year gift rule.” Our sister has no other home than our mother’s house, where she has lived for 10 years.
4. Our oldest brother is the designated power of attorney for my mother. The house is currently in our mother’s name. I have two other sisters.
My brother and sisters who have not lived with our mother believe that the sister who has lived with her does not deserve the house. They believe that she lived with our parents for ten years rent free and that offsets any right to the house or compensation.
I believe that she does deserve the house or fair compensation for what she provided our parents. She should qualify for the Medicaid exemption rule that would allow my mother to gift her the house but my brother holds power of attorney and has not indicated he will sign the house over to our sister. I’ve advised the sister who lived with them to contact an attorney because I think she has legal right to the house.
Sister Who Wants to do the Right Thing
I’m with you.
Your sister was there for your mother for a decade. Sure, she lived there rent-free, but she was an unpaid caretaker and gave up those years in earnings, as well as countless opportunities (both social and financial) to ensure your mother didn’t want for anything. It seems like your brother is using his power of attorney to make the decision. If your mother is still of sound mind, this is her decision to make — not his.
This situation replays itself across the country. More than 43.5 million adults in the U.S. have provided unpaid care to an adult or a child within the prior 12 months, according to the AARP Public Policy Institute, the advocacy group for Americans aged 50 years and older. More than 18% of the respondents interviewed reported being full-time caregivers. Some 60% of caregivers are female and the average age is 49.
The total estimated aggregate lost wages, pension, and social security benefits of these caregivers of parents is nearly $3 trillion, according to “The MetLife Study of Caregiving Costs to Working Caregivers.” The cost impact of caregiving on the individual caregiver in terms of lost wages and Social Security benefits equates to around $324,044 for a woman and $303,880 for a man. Your sister may also be entitled to reimbursements.
There was overwhelming support for you and your caregiving sister among the Facebook Group members for this column. As Alan Ridgeway commented, “A starting salary for a home health aide (which is essentially the job the sister has been fulfilling) is about $25,000 per year not counting overtime.” It varies from state-to-state, of course. But, according to the Bureau of Labor Statistics, he’s right on the money.
But there’s more. “A typical power of attorney does not allow the agent to make gifts from the principal’s assets,” says H. Terrell Monks, a family lawyer in Midwest City, Okla. http://terrellmonks.com Your brother is likely not lawfully able to deed the property to the sister who provided the care. “If the brother were to wrongfully deed the property away, he could be called to answer for that act in a civil suit for violation of his fiduciary duty to his mother,” he adds.
Two options remain: Appeal to your mother to (a) transfer the property under the Medicaid gift allowance or (b) put it in a living trust for your sister that would become irrevocable after her death. Monks has an option (c). You and your sister could assign your interest in the house to your caregiving sister during probate. “Both sisters would also be free to make an argument to their siblings that they should also assign their inheritance to the caregiver,” he said.
Ten years is a long time, and while his mother was being taken care of day and night your brother had ample time to speak up.
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