Legal Question in Wills and Trusts in Massachusetts
My older brother has guardianship over my younger brother. My younger brother is not mentally competent and has not been mentally competent since he was a teenager - he will be 51 years old next month. Before my sister passed away in 2006, she left our younger brother a trust with 140 thousand dollars, with the provision that it would return to her upon the younger brother's death. My younger brother is living in a group home off of the income from our late father's social security and our late mother's social security, plus the older brother gives him $300 every month. In addition to the trust, the younger brother has a one-quarter share in an inherited house that is worth maybe 100 thousand dollars. My older brother would like to gain control over the trust and the share of the house. We are putting the house on the market, so this share will eventually become liquid. My older brother is concerned that if he can get a lawyer to change things so that the money in the trust stays with the younger brother in some other form that is more accessible, the government will find out about the money and want it to pay for the younger brother's care and cease the social security payments, and perhaps want the money to pay for past social security payments retroactively. Should my older brother petition the court to grant him power of attorney over the younger brother's assets, and if he does petition the court successfully, would his control over assets apply even to a trust? Would he have enough legal rights to the assets that the government could not try to take any?
3 Answers from Attorneys
It sounds like you and your brother are both great siblings to this mentally challenged brother of yours - and I applaud you for it.
As far as liquidating the house: you need a lawyer with a specialty in "special needs trusts."
It is a very specific specialty.
Fortunately, I happen to know of two firms which devote almost all of their practice to this specific area of the law. Please feel free to contact me for a referral. 617-230-2779
The short answer is that you need an experienced elder law attorney who knows both guardianship law and special needs planning, because (1) your brother has no choice but to go to court and (2) the answers to your questions are going to be very fact-specific.
If the disabled sibling has an interest in the real estate, the Probate Court MUST authorize the sale through a Petition for License to Sell. You don't mention if the guardian is both guardian of the person only or guardian of the person and estate; however, under the new Article V of the Uniform Probate Code, the guardian must bring an action under a conservatorship docket number to allow the sale to go forward. There also may need to be a self-settled special needs trust, which would also need to be authorized by the court -- but in order to determine that, the attorney needs to know more about your brother's benefits.
If your brother is receiving MassHealth, the agency must be notified of all proceedings. As for the social security payments -- you don 't mention whether your brother is receiving SSI (Supplemental Security Income) or SSDI -- those programs have different elgibility rules. Your attorney will be able to evaluate the situation and advise about the impact of any action on eligibility for benefits.
Given the facts, you need an experienced attorney to assist you. There are a number of issues that should be thought through as well, including dealing with the sale of the property and what happens to your brother's trust on his death, since your sister has passed.
Please feel free to contact me if you have more questions.
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