How Do I Enforce a Promise to Leave Me Property in Return for Care Services?
Full Question:
Answer:
The situations where the other person did what was promised typically arise where the inheritance was promised in exchange for providing care during the decedent's lifetime. There are various means by which property may be transferred in exchange for care services provided, such as a present transfer or gift or a bequest in a will or trust. For example, a person may be added to a deed, or named in a will or trust. The answer will be a matter of personal choice, depending on factors such as whether a present transfer is desired and tax and estate planning considerations. The answer will also depend on the parents' capacity to sign legal documents, such as creating a codicil to a will or new deed to add your name to the current named owners or beneficiaries.
Transferring a house to a caretaker child who has resided in the home for at least two years immediately prior to the date the patient became institutionalized and who provided care does not disqualify a person from Medicaid. Creating a life estate without the power to sell the house is a disposal of a resource that may disqualify you from Medical Assistance. If a life estate deed without the power to sell was created long enough ago that there is no penalty, the house is a countable resource, but your life estate without the power to sell has a market value of $0, so it would not disqualify you from Medical Assistance. The purchase of a life estate will be included in the definition of "assets" unless the purchaser resides in the home for at least one year after the date of purchase.
Creating a life estate deed with the power to sell the house is not a disposal, because you still have the power to sell the house at any time without anyone else's permission. However, the house could not be an exempt resource based only on your saying you intend to return home, because the State cannot put a lien on a house owned this way. The market value of the house would be counted as an available resource. If the house would be exempt for other reasons, such as because your spouse or a dependent relative lives in it, then it still would be exempt.
If a gift was to be made during the decedent's lifetime under a power of attorney, it would be a matter of determination for the court to decide what instructions were given to the agent under the power of attorney, whether the agent failed to follow the instructions, and the authorized powers of the agent. The agent under a power of attorney has a fiduciary duty to comply with the instructions of the principal and terms of the power of attorney document. Some of the factors, among others, that a court will consider may include the language of the power of attorney document, when it was to be effective, and whether the intent to make a gift was revoked. I suggest you consult a local attorney who can review all the facts and documents involved.