I'm my father's durable POA. Long story short, he wants to sell his house and has already found a buyer ( without telling me until after the fact). His house is still in his name but he says he wants to give me the money from the sell. In reading the POA is says this may be illegal. I can not help but wonder what he is really up to. I understand him wanting to sell because renting has not worked out. I did search this site I could not find anything relating to real estate.
Are you currently acting as POA? If you are currently acting as POA you know that he can not sell the house nor can he sign any contracts.
If he is competent and you are not acting as POA currently he can do what he wants with any of his possessions.
Just be aware that if he sells the house below market value. If he gifts the money to anyone he may not qualify for Medicaid if the need arises in the near future.
good possibility that you might also have to report the gift as income, can you afford to pay the taxes on the gift? Or he may have to pay a gift tax.
There are others that know more about legal stuff than I do. But I would consult an Elder Care Attorney.
If this is his primary residence, where does he intend to live once he sells it? And why would he want to give the money of the sale of his primary home to you and not use it for himself to find a new place to live? Does he figure to give you the proceeds in return for you allowing him to live with you in your home?
Selling the house needs to be done so carefully, he may have a buyer because he is offering a super deal.
I would encourage you to get an appraisal done with a certified inspection, these items will protect you if medicaid decides the house wasn't sold for fair market value. Because the house MUST sell for FMV, it is critical if medicaid is in his future.
Use the money only for dad and his care, then he can not run FOG on you, heck he might even try to blackmail you with turning you in for profiting as his POA.
He has show you who he is, believe him.
Has he been declared incompetent to make informed dedisions by a doctor or two? If so, he cannot enter into a contract. You need to notify the realtor of this.
The nursing home took me to court because they were convinced I was holding out on money they believed they were owed. I showed the judge my records and how I was paid for POA services and he agreed. The POA does not have to provide free service if they are family.
In your case it's different because I read in comments that your father lives in a care facility. When whatever means he's using for that bill with now are gone, his house will have to be sold and spent-down on his care bills before Medicaid will be possible.
Your father isn't clever. If he was clever and wanted to protect assets from a nursing home or Medicaid, he would have transferred property out of his name years ago pre-dementia. Or he would have put real estate into an 'Irrevocable Trust' which protects the asset as long as the family doesn't sell. So the family leases the house to renters then collects a nice tidy sum every month that the nursing home can't touch.
What I think your father is trying at as so many seniors do witht heir families, is they believe if they part with nothing and keep it all in their names they can use it to manipulate and control their families. That by doing things this way it's a sort of insurance policy guaranteeing their family will keep them out of a "home" if they want to inherit.
Most of the time, they get placed anyway. Your father is already in care. Leave him there.
If Dad is still competent he can sell his home any time he wishes.
But no, whether you are POA or not you cannot accept the gifting of this money, and the fact he is talking of such a thing makes me fear he is losing competency.
If an elder gifts money, home, anything else to ANYONE he cannot get any help from Medicaid for 5 years. That's the lookback on gifting in all states save my own California (2 1/2 years). He is of an age and may need care at any moment. This would be disasterous.
As to your being POA, I am sorry you took that on, but you are correct that it is against the law for you to be enriched by your principle. You have now a Fiduciary duty under the law. This is a legal issue.
If your father begins to help sell this home I would BE THERE big time. Because I am now worried re his competency and fear an unscrupulous attorney could take advantage of him. If he does sell the money goes into his own bank and investments in HIS OWN NAME with you as a signee as POA and keeping meticulous records when you have to take over for him.
He has stated that he’s not using an attorney or realtor to sell. He has been talking to someone who wants to buy. I just happen to visit yesterday and the guy called and I heard them talking. He’s already had someone help him fax the guy information about his house. I didn’t know this until yesterday. Also, he is not fully competent
In your answers below you are saying your father is completely competent.
Yet you say he doesn't believe you when you tell him that Medicaid will not pay for him if he gifts money or money from home or home to you.
THAT ISN'T a competent man.
You are his POA.
He needs to be assessed for dementia.
I would contact an attorney at once re this man attempting to buy a home from him without a realtor.
I would next contact MD for full assessment.
WHATEVER YOU DO don't accept money or cash or a home or the proceeds of the home into your own money .
Please see an attorney about this.
You and you DAD cannot afford to go wrong in this sale of a home; it would be catastrophic.
Wish you good luck.
I may have misspoken, I apologize. He is not completely competent. I really think his goal is to sell the house, try to get kicked out of the facility and try to stay with me which will not work. I will be speaking to an attorney tomorrow.
Most of the time the kids place the parent anyway and just let the nursing home, memory care, assisted living take it all. It's not worth the price of their own homes, jobs, families, marriages, and lives to maybe potentially inherit something at some point.
It's not worth it.
It's only a penalty problem if it isn't sold for fair market value. That's why getting an appraisal and inspection are so important. These will prove the condition of the house and the value based on the condition.
If he chooses not to do this right and give someone a super deal on the house, you should walk away, because that will cause you more trouble with medicaid and where dad goes than it is worth.
I would encourage you to think long and hard about telling dad his actions will make you walk away and never look back, he has to be stopped or face the consequences of his choices all by himself.
That's my opinion on this train wreck coming.
I have talked to him and told him that he can not sell the house. I tried again to explain why. I explained all the legal ramifications and he still does not believe me but as you said I have an obligation to stop this and that is what I have done. He is not fully competent enough and continues to argue but he has always argued with me when I don't agree with him.