Legal Question in Elder Law in Massachusetts

Re: power of attorney for alzhiemers patient

A power of attorney can end on a date set by the original power of appointment. This is fairly rare, mainly used by people who will be out of the state or country for a long period and need someone to manage their affairs while they are away.

Most likely, your mother executed a regular power of attorney, rather than a durable power of attorney, and it expired when your mother became incompetent.

Placing the property in an irrevocable realty trust is often done to prevent the property from being taken by the state for medicaid (MassHealth) payments for nursing home care and to assure eligibility for medicaid.

Taking out a mortgage is NOT one of the things an attorney in fact would do unless the principal (your mother) needed money for other reasons. Your sister is accountable to your mother for how the money was spent, and if the mortgage is not being paid, the house could be taken in foreclosure. You need to discuss this with your sister.

At this point, your mother needs more than a power of attorney: she needs a guardian. If the power designates your sister to be appointed guardian, the court would likely go along with it, unless you can show she has taken advantage of your mother (which may also be a crime).

I do guardianships and have for over 30 years.

A "lookback period" only applies to qualifying for medicaid. Outright gifts have a 36-month lookback, transfer to trusts have a 60-month lookback, and additional transfers during the lookback period can affect the ineligibility period. Hopefully, your mother will not need to apply for medicaid within the lookback period, which has gone on for 24 months, and has 36 months to go. Medicare covers about 6 months of nursing home care, so if your mother is in a nursing home and has been there for a while, your sister may be paying for care out of the mortgage proceeds, or may have lied on a medicaid application if mother is receiving medicaid/MassHealth to pay for the nursing home care.