Legal Question in Elder Law in Massachusetts

Re: Alzheimers and POA

If your mother is no longer competent, she cannot sign a POA giving you or your father authority to act in her stead. At this point, you would have to have a guardian appointed for her, and the guardian, after getting authority from the court, could transfer the property. Even though they own the property jointly, your father can't transfer the property without her.

Please let me know if I can assist you. Our office works on many guardianships and Medicaid planning issues.

Re: Alzheimers and POA

You're actually asking some deceptively tricky questions. The answers are going to depend on how ALL the facts -- including the ones you have not provided -- interact with MassHealth regulations will also help determine whether any given plan of action is a good idea or not.

Whatever you or your mother can do depends on whether your mother is able to sign an agreeement and understand what it means. This is called "contractual capacity." If she still has contractual capacity, then she can sign a deed or a power of attorney. However, if she no longer has that ability because of the progress of her disease, you will have to get a guardianship and then get the court's authority to remove her name from the deed by way of a Petition for Authorization to Establish an Estate Plan.

Whether you qualify as a "caretaker child" and can receive the house depends on whether you can prove that you actually lived with your mother in the two-year period before she went into the nursing home. However, the transfer of the house could impact your father's future eligibility for MassHealth. Again -- more facts are needed to provide a proper answer.

Last -- are there other children? If so, how will they respond to your getting the lion's share of the parents' assets?

Your father should contact an elder law attorney to review his options.

Re: Alzheimers and POA

What your father is proposing to do requires very technical analysis and may effect your father's future benefits. I would suggest you meet with an Elder Law attorney and provide him or her with all the relevant facts. At that stage, he or she can advise you the best way to preserve your parents assets home and other assets without violating the law or advesely impacting anyone's benefits.

As to the POA, your mother is not competent to sign one, so you cannot get one. If your father has a DPOA for your mother, he can authorize you to handle certain affairs for her now.

You should get a DPOA for your father while he is competent.

Please feel free to contact me if you have anyother questions.