Can my brother and I use the Power of Attorney my parents had drawn up years ago to put the home my parents owned in our names now that my mother has been diagnosed with dementia?

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Can my brother and I use the Power of Attorney my parents had drawn up years ago to put the home my parents owned in our names now that my mother has been diagnosed with dementia?

My father died in 2011. My mother was diagnosed with demetia in 2015. We know its late but we would like to put the house, which we will inherite upon her death per their will, in our names. Can we do this if we have Power of Attorney, regardless of my mother’s dementia diagnosis?

Asked on October 12, 2016 under Estate Planning, Virginia

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

If it is a durable power of attorney (one that by its terms remains in effect even when the person making it becomes incompetent), then legally you can do this. Doing so (and how you do it) has to be in your mother's interest: attorneys-in-fact or agents (the people given power by the POA) have a fiduciary duty (obligation imposed by law) to act in the best interests of the principal (the person granting the power). Trying to preserve her property from Medicaid could be a valid reason to do this, so long as it appears to be in line with her wishes and does not harm her (e.g. she can still live there). Of course, if you're trying to preserve her property, you'll have to navigate the Medicaid rules, such as the 5-year look-back period. There are also tax implications for her and you. So the short answer is, depending on the terms of the POA, you most likely have the legal authority, but must make sure you do this in a way in line with your mother's interests and comply with tax, Medicaid, etc. rules. You are strongly advised to consult with an estate planning attorney about your options and how best to do this.


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