Legal Question in Wills and Trusts in Illinois

mom with althiemers

My father in law passed away 2 months ago. Mom has althiemers and lives in the home mom and dad have been in for 35 years. My brother in law the loser is 45 and has lived with them for at least 10 years. He is an alchoholic and has 6 kids he does not raise. He is in the house and is now tending to mom. So he has a roof over his head. Anyway my husband was and is dads and moms POA and is the eldest of three boys. We are currently paying dads bills and debts with moms pention from dad and SS which comes to us. Dad left debt and a $77,000 mortgage due to refinancing because of the brother in law who totally controlled and spent dad and moms money while dad was alive. Dad is gone and the ride is over for him. The house is for sale because mom alone can not pay the bills and take care of the unemployed brother in law. When the house sells mom will be coming to my home and Im going to take care of her. Way better then my brother in laws abuse and neglect.

Now my question: When the house is sold my husband wants to split the approx. $120,000 4 ways, mom and the three boys. Thats what dad would have wanted. Especially so the brother in law could get a start. Otherwise he's screwed. So, what if I cant handle m


Asked on 10/24/07, 8:54 am

1 Answer from Attorneys
Peter Olson The Olson Law Firm, LLC

Re: mom with althiemers

The main issue that comes to me is does the Power of Attorney give your husband the authority to make "gifts" of your mother's money. The basic "form" POA does NOT allow for gifting...a good lawyer would generally add this provision because it's a good authority to have but I'd say that most often I do not see the "gifting" authority given. So, if your husband has "gifting" authority he can give some of the money away. If not, he can't. Practically, it's sounds too late for gifting for nuring home purposes because essentially your mother needs to give away assets 5 years prior to entering a nursing home to qualify for Medicaid. You might want to sit down with a good elder law attorney if a nursing home is foreseeable...there are some types of trusts that can be used to protect her assets.

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Answered on 10/24/07, 10:06 am


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