Legal Question in Wills and Trusts in Texas
trust funds
My 85 year old mother is physically and mentally unable to care for herself anymore. My two brothers and I are considering finding a nursing home for her. My brother lives on her property in a trailer. She lives in her own home. My brother wants to get a power of attorney in order to split the land up, sell the house and put the money in a trust fund to take care of her. In her will, he is already named as the executor. Who should we name to oversee the trust fund and can my brother do this without her consent?
1 Answer from Attorneys
Re: trust funds
If your mother is currently mentally incapacitated, she will not be able to give you a power of attorney at this point. In order for her to give you or your brothers a power of attorney she must have the mental capacity to do so. From what you're telling me it does not sound like she has the capacity required to give you power of attorney. A more appropriate avenue may be to petition the court to be appointed as her guardian
However, you must be very careful regarding the sale of her house,and putting those proceeds in a trust. If your goal is to qualify her for Medicaid assistance, you are potentially destroying her eligibility for those benefits by selleing the exempt asset (house) and creating a trust. Medicaid rules are very strict regarding penalties for transfering money into a trust.
This is a tricky area. Please call me with any questions you may have BEFORE selling house, or creating a trust.
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